Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than: (a) Indebtedness to the Lenders arising under any of the Loan Documents; (b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations; (c) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services; (d) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8; (e) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default; (f) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and (g) subject to the provisions of §9, Indebtedness of the Borrower or CVOP II in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes; (h) subject to the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assets; (i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period; (j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and (k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement.
Appears in 3 contracts
Samples: Credit Agreement (Carter Validus Mission Critical REIT II, Inc.), Term Loan Agreement (Carter Validus Mission Critical REIT II, Inc.), Credit Agreement (Carter Validus Mission Critical REIT II, Inc.)
Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors Guarantor or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(d) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(e) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(f) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and
(g) subject to the provisions of §9, Indebtedness of the REIT and Borrower or CVOP II in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes;
(h) subject to the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Mortgaged Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt or Unsecured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) Indebtedness shall not exceed fifteen twenty percent (15.020%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured DebtValue; and
(kj) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I Borrower to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I Borrower that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Mortgaged Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iiiz) no Subsidiary of the Borrower which directly or indirectly owns a Pool Mortgaged Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement.
Appears in 3 contracts
Samples: Credit Agreement (Carter Validus Mission Critical REIT, Inc.), Credit Agreement (Carter Validus Mission Critical REIT, Inc.), Credit Agreement (Carter Validus Mission Critical REIT, Inc.)
Restrictions on Indebtedness. (a) The Borrower will Company shall not, and will shall not permit any Guarantor or their respective of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or be otherwise become directly or remain indirectly liable, contingently or otherwise, with respect to (collectively, "incur") any Indebtedness (including Acquired Debt); provided, however, that the Company or any Guarantor may incur Indebtedness (including Acquired Debt), and any Restricted Subsidiary of the Company (other than:
(athan a Bankrupt Subsidiary) Indebtedness may incur Acquired Debt not incurred by the acquired Person in contemplation of the related acquisition of such Person by such Restricted Subsidiary, if the Company's Consolidated Coverage Ratio at the time of incurrence of such Indebtedness, after giving pro forma effect to such incurrence or issuance as of such date and to the Lenders arising under any use of proceeds therefrom, as if the same had occurred at the beginning of the Loan Documents;most recently ended four fiscal quarter period of the Company (commencing on or after the Issue Date) for which internal financial statements are available, would have been no less than 2.00 to 1.00.
(b) Section 4.09(a) will not prohibit the incurrence of any of the following items of Indebtedness (collectively, "Permitted Debt"):
(1) the incurrence by the Company or any Restricted Subsidiary of Indebtedness and letters of credit under the Credit Agreements in an aggregate principal amount at any one time outstanding (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) not to exceed $280.0 million, less the aggregate amount of all Net Proceeds of Asset Sales applied to repay Indebtedness under the Credit Agreements in order to comply with Section 4.10(b);
(2) the incurrence by the Company of Indebtedness consisting solely of its obligations under Insurance Premium Financing Arrangements, which obligations shall not exceed at any time $30.0 million in the aggregate;
(3) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness, including without limitation the Unsecured Notes;
(4) the incurrence by the Company and the Guarantors of Indebtedness represented by the Notes and the related Subsidiary Guarantees to be issued on the Issue Date;
(5) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in a Permitted Business in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (5), not to exceed $15.0 million at any time outstanding;
(6) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance, defease or replace, Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under Section 4.09(a) or any of clauses (3), (4), (5), (6), (9), (15), (16) or (18) of this paragraph;
(7) the incurrence (i) by the Company or any of the Guarantors of intercompany Indebtedness between or among the Company and any of the Guarantors and (ii) by non-Guarantor Restricted Subsidiaries of the Company of Indebtedness to the Lender Hedge Providers Company or a Guarantor in an aggregate net amount not to exceed $20.0 million; provided, however, that (a) if the Company or any Guarantor is the obligor on such Indebtedness, such Indebtedness must be unsecured and expressly subordinated to the prior payment in full in cash of all obligations with respect to the Notes (in the case of the Company) or the related Subsidiary Guarantee (in the case of a Guarantor); and (b) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Guarantor and any sale or other transfer of any Hedge Obligationssuch Indebtedness to a Person that is not either the Company or a Guarantor will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Guarantor, as the case may be, that was not permitted by this clause (7);
(c8) the incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations that are incurred for the bona fide purpose of hedging (w) current liabilities interest rate risk with respect to Indebtedness of the BorrowerCompany or any of its Restricted Subsidiaries permitted to be incurred under this Indenture and which has a notional amount no greater than the payments due with respect to the Indebtedness being hedged thereby, or (x) currency exchange rate risk in connection with then existing financial obligations, or (y) the Guarantors acquisition of goods or their respective Subsidiaries services or (z) against fluctuations in electricity rates pertaining to electricity produced by a Project; and in no event for purposes of speculation;
(9) Guarantees provided under Section 4.17 and the Guarantees by the Company or any Restricted Subsidiary of Indebtedness of the Company or a Restricted Subsidiary that was permitted to be incurred by another provision of this Section 4.09;
(A) Indebtedness incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(d) Indebtedness solely in respect of taxesbid, assessmentssurety and similar bonds and standby letters of credit issued for the purpose of supporting workers' compensation liabilities or other insurance obligations of the Company or any of its Restricted Subsidiaries, governmental charges or levies and claims for labor, materials and supplies to the extent that such incurrence does not result in the incurrence of any obligation for the payment therefor shall not at the time be required of borrowed money to be made in accordance with the provisions of §7.8;
others and (eB) Indebtedness owed to, including obligations in respect of judgments only letters of credit for the benefit of, any Person in connection with workers' compensation, health, disability or other employee benefits or property, casualty or liability insurance provided by such Person to the extentCompany or a Restricted Subsidiary of the Company, for the period and for an amount not resulting in an Event of Default;
(f) endorsements for collection, deposit pursuant to reimbursement or negotiation and warranties of products or servicesindemnification obligations to such Person, in each case incurred in the ordinary course of business; and;
(g11) subject to the provisions of §9, Indebtedness of the Borrower or CVOP II obligations in respect of Derivatives Contracts that are Performance Guarantees entered into in accordance with Section 4.20;
(12) obligations in respect of any Existing IPP International Project Guaranties;
(13) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds in the ordinary course of business, and such Indebtedness is extinguished within five business and not for speculative purposesdays after incurrence thereof;
(h14) subject Indebtedness arising from agreements of the Company or any of its Restricted Subsidiaries providing for indemnification, adjustment of purchase price, earn-out or other similar obligations, in each case, incurred or assumed in connection with the disposition of any business or assets or a Subsidiary of the Company;
(15) Indebtedness of the Company or any of its Restricted Subsidiaries, to the provisions extent the net proceeds thereof are promptly (a) used to purchase Notes tendered pursuant to a Change of §9, Control Offer under Section 4.15 or (b) deposited to defease the Notes in accordance with Article 8;
(16) the incurrence by the Company or any of its Restricted Subsidiaries of Non-Recourse Indebtedness that is secured by Real Estate Debt or Limited Recourse Debt, in an aggregate amount not to exceed the greater of (other than i) $40.0 million and (ii) 33% of the Pool Properties or interest therein) aggregate reduction in principal amount of Non-Recourse Debt and related assetsLimited Recourse Debt in existence on the Issue Date, up to a maximum amount of $150.0 million, at any time outstanding;
(i17) subject the incurrence by any Restricted Subsidiary of the Company of Limited Recourse Debt relating to waste-to-energy Projects, so long as the provisions incurrence by such Restricted Subsidiary of §9such Limited Recourse Debt is required, Secured Debt that as evidenced by a resolution of the Board of Directors, by the existing client (if such client is Recourse Indebtedness, a governmental authority) of the relevant Project; provided that during the aggregate amount continuance of such Secured Debt (excluding an Event of Default, the Obligations Company and the Hedge Obligations) its Restricted Subsidiaries shall not exceed fifteen percent (15.0%) of Gross Asset Value at enter into any time; provided, however, that new commitments for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during any such periodIndebtedness;
(j18) subject Non-Recourse Debt or Limited Recourse Debt incurred by any of the Company's Restricted Subsidiaries, the net proceeds of which are used to repay, redeem or repurchase the provisions Notes or any other secured unsubordinated Indebtedness of §9the Company; and
(19) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, Unsecured as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (19), not to exceed $30.0 million at any time outstanding.
(c) For purposes of determining compliance with this Section 4.09, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt which is pari passu with the Indebtedness described in clause (a1) abovethrough (19) of Section 4.09(b), provided or is permitted to be incurred pursuant to Section 4.09(a), the Company will be permitted to classify such item of Indebtedness on the date of its incurrence, or later reclassify all or a portion of such item of Indebtedness, in any manner that such Unsecured Debt described in complies with this §8.1(j) may have Section 4.09. The maximum amount of Indebtedness that the Company or any of its Restricted Subsidiaries may incur pursuant to this covenant shall not be deemed to be exceeded solely as a result of fluctuations in currency exchange rates. Indebtedness under the Pool Properties Credit Agreements, including Guarantees of such Indebtedness, on the Issue Date will be deemed to have been incurred on such date in reliance on the exception provided by clause (1) of Section 4.09(b).
(d) Accrual of interest or any dividends, the accretion of accreted value or original issue discount and the payment of interest therein or any direct or indirect ownership interest dividends in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support additional Indebtedness will not be deemed to be an incurrence of Indebtedness for such Unsecured Debt; andpurposes of this Section 4.09.
(ke) unsecured For purposes of determining compliance with any U.S. dollar-denominated restriction on Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency will be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of Subsidiaries term debt, or first committed, in the case of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectivelyrevolving credit debt; provided that (1) the U.S. dollar-equivalent principal amount of any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after outstanding or committed on the Merger, CVOP I that is a Guarantor shall Issue Date will be subordinate to calculated based on the repayment of relevant currency exchange rate in effect on the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms Issue Date of this AgreementIndenture, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, and (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP Iif such Indebtedness is incurred to refinance other Indebtedness denominated in a foreign currency, and (4) such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such Refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced. The principal amount of any Subsidiary of Indebtedness incurred to refinance other Indebtedness, if incurred in a different currency than the Borrower or from and after Indebtedness being refinanced, shall be calculated based on the Merger, of CVOP I (other than any currency exchange rate applicable to the currencies in which such Subsidiary of Borrower, CVOP I or CVOP II respective Indebtedness is denominated that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien effect on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate the date of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreementrefinancing.
Appears in 3 contracts
Samples: Indenture (Covanta Energy Corp), Indenture (Covanta Energy Corp), Indenture (Covanta Energy Corp)
Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor or their respective Subsidiaries of the other Transaction Parties to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders Banks and the Agent arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, Borrower or the Guarantors or their respective Subsidiaries other Transaction Parties incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(dc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8ss.8.8;
(ed) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the period Borrower or such other Transaction Party shall at the time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(fe) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(f) obligations under Capitalized Leases which, when combined with amounts outstanding under ss.9.1(g), do not exceed $50,000,000 in aggregate amount at any time outstanding;
(g) subject Indebtedness incurred in connection with the acquisition after the date hereof of any real or personal property by the Borrower or such other Transaction Party, PROVIDED that the aggregate principal amount of such Indebtedness of the Borrower and the other Transaction Parties shall, when combined with amounts outstanding under ss.9.1(f) not exceed the aggregate amount of $50,000,000 at any one time;
(h) Indebtedness of the Borrower and the other Transaction Parties existing on the date hereof and listed and described on SCHEDULE 9.1 hereto;
(i) Indebtedness of (i) a Guarantor, following its execution and delivery of its Guaranty to the provisions Agent, to the Borrower; (ii) Hadco FSC to the Borrower in an aggregate amount not to exceed $2,000,000; (iii) Hadco Malaysia to the Borrower in an aggregate amount not to exceed $55,000,000, no more than $25,000,000 of §9which may be incurred in any one fiscal year of the Borrower; PROVIDED, HOWEVER, that if during any fiscal year the amount of such Indebtedness permitted for that fiscal year is not so utilized, such unutilized amount may be utilized in the next succeeding fiscal year; and (iv) New Zycon to the Borrower in an aggregate amount not to exceed $50,000;
(j) Indebtedness consisting of contingent obligations arising in connection with any Transaction Party's compliance with applicable Environmental Laws in an amount not to exceed in the aggregate $20,000,000;
(k) so long as no Default or Event of Default shall have occurred and be continuing or would occur as a result of the incurrence of any thereof, unsecured Indebtedness of the Borrower or CVOP II any of the Guarantors up to an aggregate amount (the "ADDITIONAL AMOUNT") equal to the amount of $175,000,000, consisting of: (i) up to an amount equal to $150,000,000 (but not to exceed, when combined with amounts of Indebtedness incurred pursuant to clause (ii) of this ss.9.1(k), the Additional Amount) of Indebtedness which is expressly subordinated and made junior to the payment and performance in respect full of Derivatives Contracts the Obligations; and (ii) up to $150,000,000 (but not to exceed, when combined with amounts of Indebtedness incurred pursuant to clause (i) of this ss.9.1(k), the Additional Amount) of Indebtedness which may rank PARI PASSU with the Obligations; PROVIDED, HOWEVER, that are entered into in the ordinary course terms of business and not for speculative purposesIndebtedness permitted pursuant to this ss.9.1(k) shalL include the following:
(A) the maturity date of any such Indebtedness occurs at least one hundred twenty (120) days following the Revolving Credit Loan Maturity Date;
(hB) subject with respect to the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the subordinated Indebtedness described in clause (ai) aboveof this ss.9.1(k), provided that such Unsecured Debt no principal, interest, fees or other amounts with respect thereto are due and payable upon the occurrence and during the continuance of a Default or Event of Default;
(C) with respect to subordinated Indebtedness described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, clause (i) none of this ss.9.1(k), no principal or sinking fund payments are due prior to at least one hundred twenty (120) days following the Revolving Credit Loan Maturity Date;
(D) the rate of interest and other fees applicable to such Indebtedness are, in the reasonable judgment of the Indebtedness described Agent and the Majority Banks, a market rate for companies with the same or a similar financial profile as the Borrower;
(E) the covenants, including affirmative, negative and financial covenants, included therein are, in §8.1(h) and (i) above shall have any the reasonable judgment of the Pool Properties or any interest therein or any direct or indirect ownership interest Agent and the Majority Banks, less restrictive than the covenants set forth in any Subsidiary Guarantor as collateralss.ss.8, 9 and 10 hereof and do Not contain a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any negative pledge on assets of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, Borrower and the other Transaction Parties (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwisebut may, with respect to PARI PASSU Indebtedness described in clause (ii) of this ss.9.1(k), contain an "equal and ratable clause" with respect to any Indebtedness collateral obtained by the Agent and the Banks);
(other than Indebtedness to F) the Lenders arising under terms and conditions of which may not be amended without the Loan Documentsprior written consent of the Agent and the Majority Banks;
(G) default provisions with respect to which there is a Lien on any Equity Interestsdo not cross-default to the Credit Agreement and the other Loan Documents, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwiseexcept that, with respect to any PARI PASSU Indebtedness which is permitted by §8.1(hdescribed in clause (ii) of this ss.9.1(k), such default provisions may cross-default to a Default or Event of Default under ss.13.1(a) or (b), to the extent that any such Default or Event of Default is not cured or waived within thirty (30) days after the occurrence thereof;
(H) subordinated Indebtedness described in clause (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreementss.
Appears in 3 contracts
Samples: Revolving Credit Agreement (Hadco Acquisition Corp Ii), Revolving Credit Agreement (Hadco Acquisition Corp Ii), Revolving Credit Agreement (Hadco Corp)
Restrictions on Indebtedness. The Borrower and the Guarantors will not, and will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(dc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(ed) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an a Default or Event of Default;
(fe) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(f) subject to the provisions of §9, Non-Recourse Indebtedness of the REIT, Borrower and their respective Subsidiaries (other than the Subsidiary Guarantors, the Borrowing Base Subsidiaries or any other Subsidiary of Borrower owning an interest in a Subsidiary Guarantor or a Borrowing Base Subsidiary); provided that REIT or the Borrower may provide a guaranty or indemnity with respect to Non-Recourse Exclusions in connection with such Non-Recourse Indebtedness; provided further that Colonial LP shall be allowed to remain liable, contingently or otherwise, on any guaranty or indemnity with respect to Non-Recourse Exclusions in connection with Non-Recourse Indebtedness existing as of the consummation of the Colonial Merger Transactions (the “CLP Guaranties”); and
(g) subject to the provisions of §9, Indebtedness of the Borrower or CVOP II in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes;
(h) subject to the provisions of §9, other than Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; providedthe REIT, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated Borrower and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agenttheir respective Subsidiaries. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective nor Borrowing Base Subsidiaries shall create, incur, assume, guarantee or be or remain liable, liable contingently or otherwise, with respect to any Indebtedness described in §8.1(f) or any Indebtedness described in §8.1(g) that is Secured Indebtedness (other than Indebtedness to exclusive, in the Lenders arising under case of Colonial LP, of the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) BorrowerCLP Guaranties), (2ii) CVOP II and from and after a Subsidiary Guarantor shall only provide a guaranty of other Unsecured Indebtedness of the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP IBorrower permitted pursuant to §8.1(g), and (4iii) any Subsidiary none of the Borrower Indebtedness described in §8.1(f) or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II §8.1(g) that is a Subsidiary Guarantor Secured Indebtedness shall have any of the Unencumbered Borrowing Base Properties or any Person having interest therein or equipment related thereto or any direct or indirect ownership interest in any Subsidiary Guarantor or Borrowing Base Subsidiary as collateral, a borrowing base, asset pool or any similar form of credit support for such Subsidiary Guarantor), may create, incur, assume, guarantee Indebtedness (provided that the foregoing shall not preclude REIT or be or remain liable, contingently or otherwise, the Borrower from incurring liability with respect to any Non-Recourse Exclusions in connection with the Indebtedness which is permitted by described in §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement8.1(f)).
Appears in 3 contracts
Samples: Term Loan Agreement (Mid-America Apartments, L.P.), Term Loan Agreement (Mid-America Apartments, L.P.), Credit Agreement (Mid America Apartment Communities Inc)
Restrictions on Indebtedness. The Borrower will not, and Credit Parties will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ai) Indebtedness to the Lenders arising under any of the Loan DocumentsDocuments and Hedge Obligations to a Lender Hedge Provider;
(bii) Unsecured Indebtedness to arising under any Unsecured Indebtedness provided that the Lender Hedge Providers Credit Parties remain in respect of any Hedge Obligationscompliance with the covenants set forth in §9 after incurring such Indebtedness;
(ciii) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries Credit Parties incurred in the ordinary course of business business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(div) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(ev) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(fvi) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(gvii) subject Indebtedness incurred to the provisions of §9any other landowners, Indebtedness of the Borrower government or CVOP II in respect of Derivatives Contracts that are entered into quasi-government or entity or similar entity in the ordinary course of business in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and not for speculative purposes;
(h) subject to similar agreements incurred in the provisions ordinary course of §9, Non-Recourse Indebtedness that is secured by business in connection with the development of Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions construction of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter infrastructure in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debtconnection therewith; and
(kviii) unsecured Other Indebtedness of the REIT Guarantor and the Borrower (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of REIT Guarantor (other than Borrower or a Subsidiary of Borrower, CVOP II or, Guarantor) from and after the Merger, CVOP I that is a Guarantor shall incurring Indebtedness which would be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to prohibited by the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor§8.1), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Plymouth Industrial REIT, Inc.), Term Loan Credit Agreement (Plymouth Industrial REIT, Inc.)
Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor or their respective of its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than, so long as no Default or Event of Default shall then exist or would result therefrom:
(a) Indebtedness to the Lenders Banks and the Agent arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) Unsecured current liabilities of the Borrower, the Guarantors Borrower or their respective Subsidiaries such Subsidiary incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services; PROVIDED, that each account payable shall be paid or discharged in accordance with the Borrower's past customary practice within the appropriate time period after the same shall have become due and payable, unless the same shall currently be contested by the Borrower or such Subsidiary in good faith by appropriate proceedings or other appropriate action, and the Borrower or such Subsidiary, as the case may be, shall have set aside such reserves, if any, with respect thereto as are required by generally accepted accounting principles and deemed adequate by the Borrower;
(dc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8Section 9.8;
(ed) Indebtedness in respect of judgments only to or awards that have been in force for less than the extentapplicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the Borrower or such Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review;
(e) Other unsecured Indebtedness of the Borrower, for provided that (i) after the period incurrence of such Indebtedness and for an amount not resulting in an after giving effect thereto, no Default or Event of DefaultDefault shall then exist and (ii) the aggregate outstanding principal amount of all such Indebtedness shall not, at any time, exceed $10,000,000;
(f) endorsements for collection, deposit or negotiation Indebtedness of the Borrower and warranties its Subsidiaries in respect of products or services, in each case rental obligations (net of subleases) under leases (other than Capitalized Leases) incurred in the ordinary course of business; and
(g) subject to the provisions of §9, Indebtedness of the Borrower or CVOP II in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes;
(h) subject to the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt obligations required to be paid in any fiscal year shall not exceed $15,000,000;
(excluding g) Indebtedness of the Obligations Borrower in respect of Capitalized Leases (net of subleases), provided that the aggregate Outstanding amount of all future principal payments owing under (i) Capitalized Leases existing on the date hereof and (ii) additional Capitalized Leases entered into pursuant to this subsection (g) after the Hedge Obligationsdate hereof (as reflected in the notes to the Borrower's audited financial statements in accordance with generally accepted accounting principles) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period time exceed $20,000,000;
(h) Indebtedness existing on the Closing Date and listed and described on SCHEDULE 10.1 hereto;
(i) Indebtedness consisting of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations Senior Notes and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such periodAdditional Senior Notes;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu purchase money Indebtedness incurred in connection with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have acquisition after the date hereof of any of the Pool Properties real or any interest therein or any direct or indirect ownership interest in personal property by the Borrower or any of its Subsidiaries; PROVIDED that (i) the amount of such Indebtedness does not exceed the lesser of the fair market value or the purchase price of the property so acquired, (ii) any lien securing such Indebtedness covers only the property so acquired, and (iii) the aggregate principal amount of such Indebtedness shall not, at any time, exceed $10,000,000;
(k) Indebtedness in respect of interest rate protection arrangements and currency exchange protection arrangements; PROVIDED that the aggregate amount of such Indebtedness shall not, at any time, exceed $5,000,000;
(l) Indebtedness (i) of JA Joint Venture LLC owing to the Borrower; PROVIDED that the Investment corresponding to such Indebtedness is permitted pursuant to Section 10.3(l), (ii) of any non-Guarantor Subsidiary of the Borrower owing to the Borrower; PROVIDED that the Investment corresponding to such Indebtedness is permitted pursuant to Section 10.3(m)(i), and (iii) of any Subsidiary which is a Guarantor as an unsecured borrowing baseowing to the Borrower or another Subsidiary which is a Guarantor; PROVIDED that the Investment corresponding to such Indebtedness is permitted pursuant to Section 10.3(m)(ii);
(m) Indebtedness of any Person acquired by the Borrower in a Permitted Acquisition, asset pool PROVIDED that (i) after such Permitted Acquisition and after giving effect thereto on a Pro Forma Basis, no Default or similar form Event of credit support for Default shall then exist, (ii) such Unsecured DebtIndebtedness was in existence prior to such Permitted Acquisition and was not incurred in contemplation thereof, and (iii) the aggregate amount of all such Indebtedness shall not, at any time, exceed $10,000,000;
(n) Indebtedness of the Borrower and its Subsidiaries issued to refinance or replace Indebtedness otherwise permitted under clauses (h), (j), or (m) of this Section 10.1, PROVIDED that (i) the aggregate amount of such Indebtedness does not exceed the principal amount of the Indebtedness so refinanced or replaced, (ii) such Indebtedness has a tenor no shorter than the Indebtedness so refinanced or replaced, (iii) such Indebtedness is on terms and conditions (including, without limitation, terms relating to interest rate, defaults, and mandatory prepayments) no more onerous to the Borrower or such Subsidiary than the Indebtedness so refinanced or replaced, and (iv) if secured, such Indebtedness is not secured by liens on any assets of the Borrower or such Subsidiary which were not previously subject to liens securing the Indebtedness so refinanced or replaced; and
(ko) unsecured Indebtedness of Subsidiaries of Borrowerprior to June 30, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II 2001 and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary merger of the Borrower or and TRC, contingent liabilities arising from the indemnity contained in that certain tax disaffiliation agreement between TRC and after Friendly Ice Cream Corporation not to exceed in the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreementaggregate $10,500,000.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Perkins Finance Corp), Revolving Credit Agreement (Restaurant Co)
Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(d) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(e) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of a Default;
(f) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(g) subject to the provisions of §9, and provided that the IPO Conditions Satisfaction Date has occurred, Indebtedness that is Recourse Indebtedness (including, without limitation, any completion or other guarantees, whether incurred directly, indirectly or through an Unconsolidated Affiliate) (excluding the Obligations), provided that the aggregate amount of such Indebtedness shall not at any time exceed ten percent (10%) of Gross Asset Value. For avoidance of doubt, no Recourse Indebtedness other than the Borrower or CVOP II in respect of Derivatives Contracts that are entered into in Obligations shall be permitted unless the ordinary course of business and not for speculative purposes;IPO Conditions Satisfaction Date has occurred; and
(h) subject to the provisions of §8.1 and §9, provided that the IPO Conditions Satisfaction Date has occurred, Secured Debt (excluding the Obligations, but including Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness), provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen thirty-five percent (15.035.0%) of Gross Asset Value at any time; provided. For the avoidance of doubt, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of no Secured Debt (excluding Indebtedness other than the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to permitted unless the repayment of the Obligations on terms reasonably acceptable to AgentIPO Conditions Satisfaction Date has occurred. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h8.1(g) and or (ih) above shall have any of the Pool Properties Borrowing Base Assets or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, and (ii) none of the Borrower, the Subsidiary Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (including, without limitation, pursuant to any conditional or limited guaranty or indemnity agreement creating liability with respect to usual and customary exclusions from the non recourse limitations governing the Non-Recourse Indebtedness of any Person, or otherwise) other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right described in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor§§8.1(a), may create8.1(b), incur8.1(c), assume8.1(d), guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i8.1(e) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement8.1(f).
Appears in 2 contracts
Samples: Credit Agreement (MedEquities Realty Trust, Inc.), Credit Agreement (MedEquities Realty Trust, Inc.)
Restrictions on Indebtedness. The Borrower and the Guarantors will not, and will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(d) Indebtedness in respect of (i) taxes, assessments, governmental charges or levies and (ii) claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.87.8 or §8.20, as applicable;
(e) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;[Intentionally Omitted.]
(f) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(g) subject to the provisions of §9, Indebtedness Secured Debt, provided that (A) the aggregate amount of Secured Debt shall not exceed forty percent (40%) of Gross Asset Value; and (B) in addition to the Borrower or CVOP II in respect of Derivatives Contracts that are entered into limitation set forth in the ordinary course immediately preceding clause (A), (1) the aggregate amount of business and not for speculative purposes;
(h) subject to the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt Indebtedness (excluding the Obligations and the Hedge ObligationsObligations to the extent ever secured hereunder) shall not exceed fifteen percent (15.015%) of Gross Asset Value at any time; providedValue, however, that for one period of four and (42) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the aggregate amount of Secured Debt (excluding Capitalized Lease Obligations of Parent Company and its Subsidiaries with respect to any of the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but Unencumbered Asset Pool Properties shall not exceed seventeen and one-half percent (17.5%) during such period$45,000,000.00;
(h) [Intentionally Omitted.]
(i) [Intentionally Omitted.]
(j) [Intentionally Omitted]; and
(k) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties REIT or any interest therein Subsidiaries of the REIT that are not Initial Subsidiary Guarantors or Additional Subsidiary Guarantors (or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing baseowners of such Subsidiaries), asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of the Initial Subsidiary Guarantors and the Additional Subsidiary Guarantors may incur Unsecured Debt only if it has the Unencumbered Asset Pool Properties as a Subsidiary of Borrower, CVOP II or, from and after borrowing base or the Merger, CVOP I that is documents evidencing same contain a Guarantor shall be subordinate covenant substantially similar to the repayment Section 4.12 of the Obligations on terms reasonably acceptable to AgentIndenture. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i8.1(g) above shall have any of the Unencumbered Asset Pool Properties or any interest therein or equipment related thereto (other than Capitalized Lease Obligations not otherwise prohibited by §8.1(g) above) or any direct or indirect ownership interest in any a Subsidiary Guarantor that either (A) owns, directly or indirectly, an Unencumbered Asset Pool Property, or (B) directly or indirectly provides services to an Unencumbered Asset Pool Property as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, Indebtedness (provided that the foregoing shall not preclude Subsidiaries of the Parent Company (other than a Subsidiary Guarantor that either (A) owns, directly or indirectly, an Unencumbered Asset Pool Property, or (B) that directly or indirectly provides services to an Unencumbered Asset Pool Property (or any direct or indirect owners of such Subsidiaries)) to incur Non-Recourse Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any §8.1 or recourse to the general credit of the Pool Properties as an unsecured borrowing baseParent Company or the Borrower), asset pool or similar form of credit support for such Unsecured Debt, and (ii) none of the Borrowerneither REIT nor any Subsidiary Guarantor that (A) either owns, the Guarantors directly or their respective Subsidiaries indirectly, an Unencumbered Asset Pool Property, or (B) that directly or indirectly provides services to an Unencumbered Asset Pool Property, shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (including, without limitation, pursuant to any conditional or limited guaranty or indemnity agreement creating liability with respect to usual and customary exclusions from the non-recourse limitations governing the Non-Recourse Indebtedness of any Person, or otherwise) other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right described in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower§§8.1(a)-(d), (2f) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4k) any Subsidiary of the Borrower or from above and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted Capitalized Lease Obligations not otherwise prohibited by §8.1(h8.1(g) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreementabove.
Appears in 2 contracts
Samples: Credit Agreement (QualityTech, LP), Credit Agreement (QTS Realty Trust, Inc.)
Restrictions on Indebtedness. The Borrower will not, and will not ---------------------------- permit any Guarantor or their respective of its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders Banks and the Agent arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the BorrowerBorrower and its Subsidiaries (other than Xxxxxxx & Xxxxxx, the Guarantors or their respective Subsidiaries Chiswick Trust and R&M Trust) incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(dc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8(S)6.8;
(ed) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the period Borrower shall at the time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(fe) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(f) obligations of the Borrower or any of its Subsidiaries (other than Xxxxxxx & Xxxxxx, Chiswick Trust and R&M Trust) under Capitalized Leases not exceeding $5,000,000 in aggregate at any time outstanding;
(g) subject to Indebtedness incurred in connection with the provisions acquisition after the date hereof of §9any real or personal property by the Borrower or any of its Subsidiaries (other than Chiswick Trust and R&M Trust), provided that -------- the aggregate principal amount of such Indebtedness of the Borrower or CVOP II in respect and its Subsidiaries (other than Chiswick Trust and R&M Trust) shall not exceed the aggregate amount of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes$5,000,000 at any one time;
(h) subject to Indebtedness existing on the provisions date of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) this Credit Agreement and related assets;listed and described on Schedule 7.1 hereto; -------- ---
(i) subject Indebtedness of (i) any and all Guarantors (other than Xxxxxxx & Xxxxxx, Chiswick Trust and R&M Trust) to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary another Guarantor as an unsecured borrowing base(other than Xxxxxxx & Xxxxxx, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from Chiswick Trust and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(hR&M Trust) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Borrower or another Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness (other than Indebtedness Xxxxxxx & Xxxxxx, Chiswick Trust and R&M Trust), in an aggregate amount not to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement.exceed $10,000,000 at any one time;
Appears in 2 contracts
Samples: Revolving Credit Agreement (New England Business Service Inc), Revolving Credit Agreement (New England Business Service Inc)
Restrictions on Indebtedness. The Borrower Issuer will not, and will not permit Emmis OpCo or any Guarantor or their respective of its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness, except (1) Permitted Refinancing Indebtedness other than:
incurred to refinance the OpCo Credit Agreement and (a2) Indebtedness to the Lenders arising under of Emmis OpCo and any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors or their respective its Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(d) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required expressly permitted pursuant to be made in accordance with the provisions of §7.8;
(e) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(f) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and
(g) subject to the provisions of §9, Indebtedness 10.1 of the Borrower or CVOP II OpCo Credit Agreement (as in respect of Derivatives Contracts that are entered into in effect on the ordinary course of business and not for speculative purposes;
(h) subject to the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any timedate hereof); provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following notwithstanding the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummatedforegoing, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any no Indebtedness (other than Indebtedness to the Lenders arising permitted under the Loan Documentsclauses (a) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that through (A) (1) Borrowerd), (2) CVOP II and from and after the Merger, NewCo, as guarantors onlyf), (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantorg), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h(i) or (ij) and with respect to which there is a Lien of §10.1 of the OpCo Credit Agreement (as in effect on the date hereof)) shall be incurred, assumed, or guaranteed by Emmis OpCo or any Equity Interests, right to receive Distributions of its Subsidiaries nor will Emmis OpCo or similar right in any Subsidiary or Unconsolidated Affiliate of its Subsidiaries become liable therefor unless at the time of such Personincurrence, subject assumption or guarantee or at the time Emmis OpCo or its Subsidiaries become liable therefor and after giving effect thereto, the Total Leverage Ratio shall be less than 3.0:1.0, as evidenced by a certificate of the Issuer substantially in the form of Exhibit J (the “Total Leverage Ratio Certificate”) delivered to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject Purchaser prior to the terms incurrence of this Agreementsuch indebtedness; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall createprovided, incurhowever, assume, guarantee or that Permitted Refinancing Indebtedness may be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness incurred without regard to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this AgreementTotal Leverage Ratio restrictions set forth herein.
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (Emmis Communications Corp), Note Purchase Agreement (Emmis Communications Corp)
Restrictions on Indebtedness. The Borrower and the Guarantors will not, and will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(dc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(ed) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of a Default;
(fe) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(f) subject to the provisions of §9, Non-Recourse Indebtedness of the REIT, Borrower and their respective Subsidiaries (other than the Subsidiary Guarantors or any other Subsidiary of Borrower owning an interest in a Subsidiary Guarantor); provided that REIT or the Borrower may provide a guaranty or indemnity with respect to Non-Recourse Exclusions in connection with such Non-Recourse Indebtedness; and
(g) subject to the provisions of §9, Indebtedness of the Borrower or CVOP II in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes;
(h) subject to the provisions of §9, other than Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; providedthe REIT, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated Borrower and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agenttheir respective Subsidiaries. Notwithstanding anything in this Agreement to the contrary, (i) none of the Subsidiary Guarantors shall create, incur, assume, guarantee or be or remain liable contingently or otherwise, with respect to any Indebtedness described in §8.1(h8.1(f) or any Indebtedness described in §8.1(g) that is Secured Indebtedness, (ii) a Subsidiary Guarantor shall only provide a guaranty of other Unsecured Indebtedness of the Borrower permitted pursuant to §8.1(g), and (iiii) above none of the Indebtedness described in §8.1(f) or §8.1(g) that is Secured Indebtedness shall have any of the Pool Unencumbered Borrowing Base Properties or any interest therein or equipment related thereto or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, Indebtedness (provided that the foregoing shall not preclude REIT or the Borrower from incurring liability with respect to Non-Recourse Exclusions in connection with the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor8.1(f), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement).
Appears in 2 contracts
Samples: Term Loan Agreement (Mid America Apartment Communities Inc), Credit Agreement (Mid America Apartment Communities Inc)
Restrictions on Indebtedness. The Excluding a mortgage, junior to the Lender’s mortgage, when it does not agree to Fund the Expansion (the “Expansion Mortgage” the Borrower will not, and will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders Lender arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries Borrower incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(dc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials materials and supplies to the extent that payment therefor therefore shall not at the time be required to be made in accordance with the provisions of §7.8Section 10.10 (provided, however, that with respect to any Indebtedness to the Contractor, the Contractor shall have entered into a subordination agreement (the "Contractor's Subordination Agreement"), in form and substance satisfactory to the Lender, subordinating the Borrower's obligation to pay Retainage to the full payment and performance of the Obligations);
(ed) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the period Borrower shall at the time in good faith be prosecuting an appeal or proceeding for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(fe) endorsements for collection, deposit or negotiation negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and
(gf) subject to the provisions of §9, unsecured Indebtedness of the Borrower or CVOP II in respect owing to any member of Derivatives Contracts the Borrower (including the Required Equity Funds), that are entered into in the ordinary course of business is expressly subordinated and not for speculative purposes;
(h) subject made junior to the provisions payment and performance in full of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations and evidenced as such by a written instrument containing subordination provisions in form and substance approved by the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this AgreementLender.
Appears in 2 contracts
Samples: Construction Loan and Security Agreement (Griffin Land & Nurseries Inc), Construction Loan and Security Agreement (Griffin Land & Nurseries Inc)
Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor or their respective Subsidiaries to, createCreate, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders arising under any of the Loan Documents, the Unsecured Revolver Agreement, the Existing Term Loan Agreement and the 2008 Term Loan Agreement;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, FP Redland Tech or the Subsidiary Guarantors or their respective Subsidiaries incurred in the ordinary course of business but not incurred other than through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(dc) Indebtedness (other than relating to the Eligible Borrowing Base Properties) in an aggregate amount not in excess of $250,000 in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.88.9;
(d) Indebtedness (other than relating to the Eligible Borrowing Base Properties) in an aggregate amount not in excess of $1,000,000 in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which, at the time, a good faith appeal or proceeding for review is being prosecuted, and in respect of which a stay of execution shall have been obtained pending such appeal or review;
(e) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(f) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(f) Secured Indebtedness of the Borrower incurred after the Closing Date, provided that: (i) such Indebtedness is Without Recourse to the Borrower, the Trust or any Subsidiary Guarantor and is Without Recourse to any Eligible Borrowing Base Property or to any of the respective assets or Equity Interests of any of the Borrower, the Trust or any Subsidiary Guarantor other than to the specific Real Estate Asset or Assets (other than any Eligible Borrowing Base Property) acquired, refinanced or rehabilitated with the proceeds of such Indebtedness, except that, notwithstanding the foregoing, a portion of such Indebtedness at any time outstanding not in excess of fifteen percent (15%) of Consolidated Gross Asset Value may be Recourse Indebtedness of the Borrower so long as such Indebtedness is not secured by any Eligible Borrowing Base Property or any Eligible Unencumbered Property (as defined in the Unsecured Revolver Agreement) or a pledge of the equity of any Subsidiary that owns an Eligible Borrowing Base Property or an Eligible Unencumbered Property (as defined in the Unsecured Revolver Agreement), (ii) at the time any such Indebtedness is incurred and after giving effect thereto, there exists no Default or Event of Default hereunder and (iii) such Indebtedness, in the aggregate, does not exceed forty percent (40%) of Consolidated Gross Asset Value (it being acknowledged, for the avoidance of doubt, that the outstanding Indebtedness hereunder, under the Existing Term Loan Agreement and under the 2008 Term Loan Agreement shall count against the fifteen percent (15%) basket referred to in clause (i) above);
(g) subject contingent liabilities of the Borrower or the Subsidiary Guarantors disclosed in the financial statements referred to in §7.4 or on Schedule 9.1(g) hereto, and such other contingent liabilities of the provisions Borrower having a combined aggregate potential liability of §9, not more than $1,000,000 at any time;
(h) Indebtedness of the Borrower or CVOP II the Subsidiary Guarantors for the purchase price of capital assets (other than Real Estate Assets but including Indebtedness in respect of Derivatives Contracts that are entered into Capitalized Leases) incurred in the ordinary course of business and not for speculative purposes;
(h) subject to the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtednessbusiness, provided that the aggregate principal amount of such Secured Debt Indebtedness permitted by this clause (excluding the Obligations and the Hedge Obligationsh) shall not exceed fifteen percent (15.0%) of Gross Asset Value $500,000 at any timetime outstanding; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;and
(ji) subject unsecured Indebtedness of the Borrower (including subsidiary guarantees thereof by any Subsidiary of FPLP) and unsecured guarantees by the Trust with respect to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) abovesuch unsecured Indebtedness, provided that (i) such Unsecured Debt described Indebtedness shall at all times remain unsecured in this §8.1(j) may have any all respects (including, for the avoidance of doubt, that the Pool Properties or any interest therein or any direct or indirect ownership interest in Equity Interests of the Borrower or any Subsidiary Guarantor shall not be pledged as an unsecured borrowing base, asset pool or similar form of credit support security for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt), (ii) none both before and immediately after giving effect to any such unsecured Indebtedness, no Default or Event of Default has occurred or is continuing, (iii) prior to incurring any such unsecured Indebtedness, the Borrower has provided the Agent with a certificate in the form of Exhibit C-2 evidencing compliance with each of the financial covenants set xxxxx xx §00 of the Credit Agreement on a pro forma basis immediately after giving effect to such unsecured Indebtedness, and (iv) such unsecured Indebtedness shall not be in the nature of a revolving credit facility. Notwithstanding the foregoing, (x) in no event shall the Borrower, the Guarantors Trust or any of their respective Subsidiaries shall createincur or have outstanding unhedged variable rate Indebtedness in excess of twenty-five percent (25%) of Consolidated Gross Asset Value; and (y) other than Indebtedness permitted under §§9.1(b), incur(d) and (e), assume, guarantee in no event will FP Redland Tech incur or be or remain liable, contingently or otherwise, with respect suffer to exist any Indebtedness (other than including, without limitation, any guaranty of Indebtedness for borrowed money) in favor of any Person. It is understood and agreed that the provisions of this §9.1 shall not apply to Indebtedness of any Partially-Owned Entity which is Without Recourse to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or the Trust, or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) of their respective assets. The terms and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms provisions of this Agreement§9.1 are in addition to, and (B) not in limitation of, the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by covenants set forth in §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement10.
Appears in 2 contracts
Samples: Senior Secured Term Loan Agreement (First Potomac Realty Trust), Senior Secured Term Loan Agreement (First Potomac Realty Trust)
Restrictions on Indebtedness. The Borrower will not, and will not permit Walden or any Guarantor or their respective of theix xxxxective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders Banks arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors Walden or their respective respexxxxx Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(dc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §Section 7.8;
(ed) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which Walden or the period Borrowex xxxxl at the time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(fe) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(f) Indebtedness in respect of reverse repurchase agreements having a term of not more than 180 days with respect to Investments described in Section 8.3(d) or (e);
(g) subject to the provisions of §Section 9, Non-Recourse Indebtedness of the Borrower or CVOP II Walden and its Subsidxxxxxx in respect an aggregate outstanding principal amount not exceeding forty percent (40%) of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes;Walden's Consolidated Xxxxx Xssets; and
(h) subject to the provisions of §Section 9, Non-Recourse secured or unsecured recourse Indebtedness of Walden and its Subsidxxxxxx, provided that is secured by Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate outstanding principal amount of such Secured Debt Indebtedness (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen five percent (15.05%) of Gross Asset Value Walden's Consolidated Xxxxx Xssets, (ii) at the time such Indebtedness is issued the scheduled maturity date of such Indebtedness is not sooner than 180 days after the Maturity Date (after giving effect to any time; providedextension of the Maturity Date which may have been requested by the Borrower prior to the issuance of such Indebtedness or approved by the Banks, howeverwhether or not the same has become effective), that for one period of four and (4iii) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter any covenants or restrictions imposed upon Walden or its Subsidixxxxx in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse connection with such Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen individually or in the aggregate be more restrictive against Walden and one-half percent (17.5%) during such period;
(j) subject its Subsidxxxxxx than the covenants and restrictions imposed pursuant to this Agreement or the provisions of §9other Loan Documents, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, and provided further that such Unsecured Debt described in this §8.1(j) may have neither Walden nor any of the Pool Properties or its Xxxxxdiaries shall incur any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §this Section 8.1(h) and (i) above unless it shall have any provided to the Banks (A) prior written notice of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form proposed issuance of credit support for such Indebtedness, provided a statement that no Default or Event of Default exists and a certificate that the Indebtedness described Borrower will be in §8.1(jcompliance with its covenants referred to therein after giving effect to such incurrence, (B) may, subject evidence reasonably satisfactory to the terms of this Agreement, have any Agent that the Rating Agency has been advised of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate issuance of such Person, provided that Indebtedness within five (A5) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP Idays of such issuance, and (4C) any Subsidiary upon the request of Agent, evidence that the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject annual rating maintenance fee has been paid to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this AgreementRating Agency.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Walden Residential Properties Inc), Revolving Credit Agreement (Walden Residential Properties Inc)
Restrictions on Indebtedness. The Borrower will not, and Loan Parties will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ai) Indebtedness to the Lenders arising under any of the Loan DocumentsDocuments and Hedge Obligations to a Lender Hedge Provider;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(cii) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(diii) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(eiv) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(fv) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(gvi) subject Indebtedness incurred to the provisions of §9any other landowners, Indebtedness of the Borrower government or CVOP II in respect of Derivatives Contracts that are entered into quasi-government or entity or similar entity in the ordinary course of business in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and not for speculative purposessimilar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith;
(hvii) subject Indebtedness of the REIT and the Borrower with respect to the provisions of §9, customary Non-Recourse Exclusions and environmental indemnities in connection with Indebtedness that is secured permitted to be incurred by Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured DebtSubsidiaries; and
(kviii) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from Borrower and REIT provided they remain in compliance with the covenants set forth in Article 9 after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate giving effect to the repayment incurrence of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Wheeler Real Estate Investment Trust, Inc.), Credit Agreement (Wheeler Real Estate Investment Trust, Inc.)
Restrictions on Indebtedness. The Borrower will not, and Loan Parties will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ai) (x) Indebtedness to the Lenders arising under any of the Loan Documents, (y) Hedge Obligations to a Lender Hedge Provider, and (z) Indebtedness to any counterparty other than a Lender Hedge Provider with respect to any Derivatives Contract made in the ordinary course of business (and not for speculative purposes);
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(cii) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(diii) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(eiv) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(fv) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(gvi) Indebtedness incurred to any other landowners, government or quasi- government or entity or similar entity in the ordinary course of business in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith;
(vii) (a) Secured Recourse Indebtedness of Borrower, Parent Guarantor, or IR OpCo as and to the extent not prohibited (and subject to the provisions of limitations set forth) in §9, 9.5 and (b) Unsecured Recourse Indebtedness of the Borrower or CVOP II Loan Parties as and to the extent not prohibited (and subject to the limitations set forth) in §9.9;
(viii) (a) the Indebtedness set forth on Schedule 8.1 hereto, and any Permitted Refinancing Indebtedness in respect of Derivatives Contracts any such Indebtedness, (b) Indebtedness (including Capitalized Leases) financing the acquisition or replacement of equipment and, limited as to each of the Subsidiary Guarantors, to $75,000.00 per fiscal year, and (c) intercompany Indebtedness of the Loan Parties outstanding from time to time; provided that are all such intercompany Indebtedness of any Loan Party owed to any Subsidiary of Parent Guarantor that is not a Loan Party shall be subordinated to the Obligations pursuant to an Intercompany Note;
(ix) Non-Recourse Indebtedness entered into in the ordinary course of business and not for speculative purposesof the Loan Parties (other than a Subsidiary Guarantor) (including, without limitation, any Indebtedness referred to in the proviso to the definition of Secured Recourse Indebtedness);
(hx) [Reserved];
(xi) Recourse Indebtedness consisting of the Non-Recourse Exclusions in respect of Non-Recourse Indebtedness permitted to be incurred pursuant to §8.2(ix);
(xii) subject to the provisions of §99.5, Non-Recourse Indebtedness that is secured by Real Estate of the Loan Parties (other than the Pool Properties or interest thereina Subsidiary Guarantor) and related assets;
(i) subject in an amount not to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that exceed $300,000.00 in the aggregate amount of assumed in connection with an Investment not prohibited by this Agreement and any Permitted Refinancing Indebtedness incurred, issued or otherwise obtained to Refinance (in whole or in part) such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectivelyIndebtedness; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrarythat, (iA) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for immediately after giving effect to such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms no Event of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool Default exists or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors is continuing or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreementwould result therefrom, and (B) such Indebtedness is and remains solely the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary obligation of the Borrower which directly Person and/or such Person’s subsidiaries that are acquired and such Indebtedness was not incurred in anticipation of such Investment;
(a) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letters of credit, warehouse receipt or indirectly owns a Pool Property shall createsimilar facilities entered into in the ordinary course of business (including in respect of workers’ compensation claims, incurhealth, assumedisability or other employee benefits or property, guarantee casualty or be liability insurance or remain liable, contingently, self-insurance or other Indebtedness with respect to any reimbursement-type obligations regarding workers’ compensation claims) and (b) Indebtedness other than Indebtedness represented by letters of credit, to the Lenders extent such letters of credit support Indebtedness otherwise permitted under this §8.1(xiii);
(xiv) Indebtedness arising under the Loan Documentsfrom agreements providing for deferred compensation, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted indemnification, adjustments of purchase price (including “earnouts”) or similar obligations, in each case entered into in connection with any Investments not prohibited by §8.1(j) subject to the terms of this Agreement;
(xv) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations incurred in the ordinary course of business and not in connection with the borrowing of money;
(xvi) Indebtedness consisting of obligations to pay insurance premiums arising in the ordinary course of business and not in connection with the borrowing of money;
(xvii) Indebtedness representing deferred compensation to employees, consultants or independent contractors of, Parent Guarantor and its Subsidiaries incurred in the ordinary course of business or in connection with any Investments not prohibited by this Agreement;
(xviii) obligations, under cash management agreements, cash management services and other Indebtedness in respect of netting services, automatic clearing house arrangements, employees’ credit or purchase cards, overdraft protections and similar arrangements in each case incurred in the ordinary course of business;
(xix) Indebtedness comprising take or pay obligations contained in supply agreements entered into the ordinary course of business; and
(xx) all customary premiums (if any), interest (including post-petition and capitalized interest), fees, expenses, charges and additional or contingent interest on obligations described in each of §8.1(i) through §8.1(xix) above.
Appears in 2 contracts
Samples: Credit Agreement (Independence Realty Trust, Inc.), Credit Agreement (Independence Realty Trust, Inc.)
Restrictions on Indebtedness. The Borrower will not, and Credit Parties will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ai) Indebtedness to the Lenders arising under any of the Loan DocumentsDocuments and Hedge Obligations to a Lender Hedge Provider;
(bii) Unsecured Indebtedness to provided that the Lender Hedge Providers Credit Parties remain in respect of any Hedge Obligationscompliance with the covenants set forth in §9 after incurring such Indebtedness;
(ciii) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries Credit Parties incurred in the ordinary course of business business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(div) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(ev) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(fvi) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(gvii) subject Indebtedness incurred to the provisions of §9any other landowners, Indebtedness of the Borrower government or CVOP II in respect of Derivatives Contracts that are entered into quasi-government or entity or similar entity in the ordinary course of business in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and not for speculative purposes;
(h) subject to similar agreements incurred in the provisions ordinary course of §9, Non-Recourse Indebtedness that is secured by business in connection with the development of Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions construction of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter infrastructure in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debtconnection therewith; and
(kviii) unsecured Other Indebtedness of the REIT Guarantor and the Borrower (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of REIT Guarantor (other than Borrower or a Subsidiary of Borrower, CVOP II or, Guarantor) from and after the Merger, CVOP I that is a Guarantor shall incurring Indebtedness which would be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to prohibited by the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor§8.1), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Plymouth Industrial REIT, Inc.), Credit Agreement (Plymouth Industrial REIT, Inc.)
Restrictions on Indebtedness. The Borrower will not, and Loan Parties will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ai) (x) Indebtedness to the Lenders arising under any of the Loan Documents, (y) Hedge Obligations to a Lender Hedge Provider, and (z) Indebtedness to any counterparty other than a Lender Hedge Provider with respect to any Derivatives Contracts made in the ordinary course of business (and not for speculative purposes);
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(cii) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(diii) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(eiv) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(fv) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(vi) Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity in the ordinary course of business in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith; and
(gvii) (a) Secured Recourse Indebtedness of Parent Borrower, Parent Guarantor, or IR OpCo as and to the extent not prohibited (and subject to the provisions of limitations set forth) in §9, 9.6 and (b) Unsecured Recourse Indebtedness of the Borrower or CVOP II Loan Parties as and to the extent not prohibited (and subject to the limitations set forth) in §9.9;
(viii) (a) the Indebtedness set forth on Schedule 8.1 hereto, and any Permitted Refinancing Indebtedness in respect of Derivatives Contracts any such Indebtedness, (b) Indebtedness (including Capitalized Leases) financing the acquisition or replacement of equipment and, limited as to each of the Subsidiary Borrowers, to $25,000.00 per fiscal year, and (c) intercompany Indebtedness of the Loan Parties outstanding from time to time; provided that are all such intercompany Indebtedness of any Loan Party owed to any Subsidiary of Parent Guarantor that is not a Loan Party shall be subordinated to the Obligations pursuant to an Intercompany Note;
(ix) Non-Recourse Indebtedness entered into in the ordinary course of business and not for speculative purposesof the Loan Parties (other than a Subsidiary Borrower) (including, without limitation, any Indebtedness referred to in the proviso to the definition of Secured Recourse Indebtedness);
(hx) [Reserved];
(xi) Recourse Indebtedness consisting of the Non-Recourse Exclusions in respect of Non-Recourse Indebtedness permitted to be incurred pursuant to §8.2(ix);
(xii) subject to the provisions of §99.6, Non-Recourse Indebtedness that is secured by Real Estate of the Loan Parties (other than the Pool Properties or interest thereina Subsidiary Borrower) and related assets;
(i) subject in an amount not to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that exceed $100,000.00 in the aggregate amount of assumed in connection with an Investment not prohibited by this Agreement and any Permitted Refinancing Indebtedness incurred, issued or otherwise obtained to Refinance (in whole or in part) such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectivelyIndebtedness; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrarythat, (iA) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for immediately after giving effect to such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms no Event of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool Default exists or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors is continuing or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreementwould result therefrom, and (B) such Indebtedness is and remains solely the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary obligation of the Borrower which directly Person and/or such Person’s subsidiaries that are acquired and such Indebtedness was not incurred in anticipation of such Investment;
(a) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letters of credit, warehouse receipt or indirectly owns a Pool Property shall createsimilar facilities entered into in the ordinary course of business (including in respect of workers’ compensation claims, incurhealth, assumedisability or other employee benefits or property, guarantee casualty or be liability insurance or remain liable, contingently, self-insurance or other Indebtedness with respect to any reimbursement-type obligations regarding workers’ compensation claims) and (b) Indebtedness other than Indebtedness represented by letters of credit, to the Lenders extent such letters of credit support Indebtedness otherwise permitted under this §8.1(xiii);
(xiv) Indebtedness arising under the Loan Documentsfrom agreements providing for deferred compensation, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted indemnification, adjustments of purchase price (including “earnouts”) or similar obligations, in each case entered into in connection with any Investments not prohibited by §8.1(j) subject to the terms of this Agreement;
(xv) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations incurred in the ordinary course of business and not in connection with the borrowing of money;
(xvi) Indebtedness consisting of obligations to pay insurance premiums arising in the ordinary course of business and not in connection with the borrowing of money;
(xvii) Indebtedness representing deferred compensation to employees, consultants or independent contractors of, Parent Guarantor and its Subsidiaries incurred in the ordinary course of business or in connection with any Investments not prohibited by this Agreement;
(xviii) obligations, under cash management agreements, cash management services and other Indebtedness in respect of netting services, automatic clearing house arrangements, employees’ credit or purchase cards, overdraft protections and similar arrangements in each case incurred in the ordinary course of business;
(xix) Indebtedness comprising take or pay obligations contained in supply agreements entered into the ordinary course of business; and
(xx) all customary premiums (if any), interest (including post-petition and capitalized interest), fees, expenses, charges and additional or contingent interest on obligations described in each of §8.1(i) through §8.1(xix) above.
Appears in 2 contracts
Samples: Term Loan Agreement (Independence Realty Trust, Inc.), Term Loan Agreement (Independence Realty Trust, Inc.)
Restrictions on Indebtedness. The Except with the prior written consent of the Requisite Lenders, the Borrower will not, the Company will not, and the Borrower will not permit any Guarantor Guarantor, any of the Related Companies or their respective Subsidiaries to, any Permitted Joint Venture to create, incur, assume, guarantee or be become or remain liable, contingently or otherwise, or agree not to do any of same with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries Borrower incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(dc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §Section 7.8;
(ed) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the period Borrower shall at the time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(fe) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and
(g) subject to the provisions of §9, Indebtedness of the Borrower or CVOP II in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes;
(hf) subject Indebtedness of Borrower, the Company or the Related Companies to the provisions extent the same does not create a violation of §9Section 9.3, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties Section 9.5 or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, Section 9.6 provided that the aggregate maximum principal amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) Recourse Indebtedness permitted under this paragraph shall not exceed fifteen percent (15.0%) of Gross Asset Value $50,000,000 in the aggregate at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreementtime outstanding.
Appears in 2 contracts
Samples: Credit Agreement (Prime Group Realty Trust), Credit Agreement (Prime Group Realty Trust)
Restrictions on Indebtedness. The Borrower None of the Credit Parties nor any of its Subsidiaries will not, and will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to of not more than $3,000,000 outstanding at any one time secured by purchase money security interests and Capitalized Leases permitted by Section 7.03(a)(vi);
(b) Indebtedness of the Lenders arising Credit Parties consisting of the Obligations under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services[Reserved];
(d) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims Swap Contracts entered into not for labor, materials and supplies to speculative purposes in the extent that payment therefor shall not at the time be required to be made in accordance with the provisions ordinary course of §7.8business;
(e) Indebtedness in respect of judgments only unsecured Subordinated Debt incurred after the Closing Date on terms and conditions acceptable to the extentAdministrative Agent in its sole discretion, for provided that (i) the period maturity date of such Subordinated Debt shall be at least one hundred and for an eighty (180) days following the Maturity Date (after taking in account any extension thereof) and (ii) the aggregate amount of such Subordinated Debt shall not resulting in an Event of Defaultexceed $2,000,000;
(f) endorsements for collectionIndebtedness consisting of intercompany loans and advances permitted by Section 7.01; provided that i4c shall not incur any such Indebtedness or accept such advances directly or indirectly other than (i) as a result of the fair and reasonable allocation of overhead and administrative expenses among the Credit Parties or (ii) only as described in Section 7.01(c);
(g) Guarantees by any Credit Party of Indebtedness of any other Credit Party permitted by this Section 7.02;
(h) Indebtedness consisting of contingent liabilities under surety bonds, deposit or negotiation performance bonds and warranties of products or services, in each case similar instruments incurred in the ordinary course of business; and;
(gi) subject to unsecured Indebtedness arising from the provisions honoring by a bank or other financial institution of §9a check, draft or similar instrument inadvertently drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is (A) extinguished within three (3) Business Days of the Borrower or CVOP II incurrence thereof, and (B) incurred in the ordinary course of business in respect of Derivatives Contracts pooled accounts and similar arrangements, in each case, in connection with cash management and deposit accounts in the ordinary course of business, provided further that are any Indebtedness arising under this clause (i) shall not exceed $100,000;
(j) Indebtedness incurred in the ordinary course of business in respect of credit cards, credit card processing services, debit cards, stored value cards, purchase cards and automated clearing house arrangements, including without limitation, Indebtedness listed on Schedule 7.02;
(k) to the extent constituting Indebtedness, obligations in respect of agreements for the deferred payment of premiums or to finance the deferred payment of premiums owing by any Credit Party under any insurance policies entered into in the ordinary course of business and not for speculative purposesthat are either (i) unsecured or (ii) secured by a Lien permitted under Section 7.03(a)(xi);
(hl) Indebtedness that may be deemed to exist under the agreements relating to any Permitted Acquisition as a result of the obligation of the applicable Credit Party to pay indemnification, contingent purchase price payments or other purchase price adjustments or similar obligations and subject to the provisions limitations as to amounts set forth in the definition of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assetsPermitted Acquisition;
(im) Indebtedness under unsecured seller financing in connection with a Permitted Acquisition to the extent permitted under Section 7.01(i) and subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period limitations as to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest amounts set forth in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form definition of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectivelyPermitted Acquisition; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate subordinated to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement a manner satisfactory to the contraryAdministrative Agent and otherwise contain terms, (i) none of the Indebtedness described in §8.1(h) conditions and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject amounts reasonably satisfactory to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, Administrative Agent;
(iin) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or Indebtedness that may be or remain liable, contingently or otherwise, deemed to exist in connection with respect Investments permitted pursuant to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(hSection 7.01(c) or (id); and
(o) and with respect other unsecured Indebtedness in an aggregate principal amount not to which there is a Lien on exceed $250,000 at any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreementtime outstanding.
Appears in 2 contracts
Samples: Credit Agreement (Intersections Inc), Credit Agreement (Intersections Inc)
Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(d) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(e) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(f) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and
(g) subject to the provisions of §9, Indebtedness of the REIT and Borrower or CVOP II in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes;
(h) subject to the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I Borrower to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I Borrower that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, and (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iiiz) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Carter Validus Mission Critical REIT II, Inc.), Credit Agreement (Carter Validus Mission Critical REIT II, Inc.)
Restrictions on Indebtedness. The Borrower REIT and the Borrowers will not, and will not permit any Guarantor or of their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the BorrowerREIT, the Guarantors Borrowers or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(dc) Indebtedness (i) of the REIT, the Borrowers or their Subsidiaries in respect of taxes, assessments, assessments and governmental charges or levies and (ii) of the REIT, the Borrowers or their Subsidiaries in respect of claims for labor, materials and supplies supplies, in each case to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §Section 7.8;
(ed) Indebtedness of the REIT, the Borrowers or their Subsidiaries in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the period REIT and the Borrowers shall at the time in good faith be prosecuting an appeal or proceedings for an amount not resulting review and in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(fe) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of businessbusiness by the REIT, the Borrowers or their Subsidiaries;
(f) Non-recourse Indebtedness of the Borrowers or their Subsidiaries; andPROVIDED, that this Section 8.1(f) shall not be interpreted to permit any Indebtedness that would cause the REIT and its Subsidiaries to exceed the limits in Sections 9.4 and 9.5; and PROVIDED, FURTHER, that Indebtedness of any Borrower or any Subsidiary shall not be considered 66 Non-recourse Indebtedness for the purpose of this Section 8.1(f) (i) if and to the extent that such Indebtedness shall have become with recourse to any Borrower or any Subsidiary on account of the occurrence of any event or condition and such recourse status shall continue in effect for more than 45 days and (ii) if and to the extent that the outstanding principal amount of Indebtedness described in clause (i) of this proviso shall exceed $25,000,000;
(g) subject to the provisions of §9, Indebtedness of the Borrower REIT, the Borrowers or CVOP II their Subsidiaries in respect of Derivatives Contracts that are entered into reverse repurchase agreements having a term of not more than 180 days with respect to Investments described in the ordinary course of business and not for speculative purposesSection 8.3(d) or (e);
(h) subject Capitalized Leases and Indebtedness of the REIT, the Borrowers and their Subsidiaries secured by purchase money security interests on tangible personal property of the REIT, the Borrowers and their Subsidiaries; PROVIDED, that the amount of such Indebtedness shall not exceed the book value of such tangible personal property and in any event shall not exceed $10,000,000 in aggregate amount outstanding at any time; and PROVIDED, FURTHER, that this Section 8.1(h) shall not be interpreted to the provisions of §9, Non-Recourse permit any Indebtedness that is secured by Real Estate (other than would cause the Pool Properties or interest therein) Borrowers and related assetstheir Subsidiaries to exceed the limits in Sections 9.4 and 9.5;
(i) subject to Indebtedness of the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations REIT and the Borrowers in respect of Qualified Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such periodAgreements;
(j) Indebtedness existing on the Initial Closing Date and listed on SCHEDULE 8.1 hereto;
(k) Indebtedness of each of Heritage OP and NHHLP to each other in respect of a cross-indemnification agreement between Heritage OP and NHHLP covering losses that either may incur as a result of the cross-collateralization of Non-recourse Indebtedness issued by each to Metropolitan Life Insurance Company, and Indebtedness of the REIT to each of Heritage OP and NHHLP pursuant to separate guarantees by the REIT of the amounts owing under said cross- indemnification agreement; PROVIDED, that none of the rights of Heritage OP or NHHLP under said cross-indemnification agreement or either of said guarantees shall be pledged or assigned to, or made the subject of a security interest for the benefit of, any third party, including without limitation Metropolitan Life Insurance Company or its affiliates, successors or assigns;
(l) Indebtedness of the REIT in respect of not more than $100,000,000 aggregate principal amount of the REIT Subordinated Notes or a Qualified Refinancing thereof and Indebtedness of the REIT and Acquisition Subsidiary under the REIT Pledge Agreement; PROVIDED, that in the event and to the provisions extent that the REIT Subordinated Notes shall be paid from moneys other than the proceeds of §9a Qualified Refinancing, Unsecured Debt which the maximum permitted amount of Indebtedness of a Qualified Refinancing shall be reduced dollar-for-dollar;
(m) Indebtedness (i) of any Wholly Owned Subsidiary to an Obligor other than the REIT or Acquisition Subsidiary or (ii) of any other Subsidiary of a Borrower to an Obligor other than the REIT or Acquisition Subsidiary, PROVIDED that the Investment represented by such Indebtedness is pari passu with permitted by Section 8.3(i);
(n) Indebtedness evidenced by the Indebtedness described MTN Notes in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any aggregate principal amount outstanding not exceeding $275,000,000 as of the Pool Properties or any interest therein or any direct or indirect ownership interest in Initial Closing Date;
(o) Indebtedness of the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured DebtREIT under the PMCC Indemnity; and
(kp) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any additional Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on in the aggregate does not exceed at any Equity Interests, right to receive Distributions or similar right time $5,000,000 in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreementprincipal amount outstanding.
Appears in 1 contract
Samples: Revolving and Term Credit Agreement (Heritage Property Investment Trust Inc)
Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor or their respective of its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Senior Lenders arising under any of the Senior Loan Documents;
(b) Indebtedness to the Lenders and the Agents arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors Borrower or their respective Subsidiaries such Subsidiary incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(d) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8Section 8.8;
(e) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the period Borrower or such Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(f) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(g) subject to Indebtedness existing on the provisions of §9, Indebtedness of the Borrower or CVOP II in respect of Derivatives Contracts that are entered into in the ordinary course of business date hereof and not for speculative purposeslisted and described on Schedule 9.1 hereto;
(h) subject Indebtedness owed by the Borrower or any of its Subsidiaries to trade vendors, in the amount of the cost to the provisions Borrower or such Subsidiary of §9inventory held on consignment from such trade vendors, Non-Recourse Indebtedness that is secured by Real Estate (other than including in connection with and pursuant to the Pool Properties or interest therein) and related assetsTrade Vendor Extension Agreement;
(i) subject Indebtedness of the Borrower and its Subsidiaries other than that permitted elsewhere in this Section 9.1 in an aggregate principal amount not to the provisions of §9, Secured Debt that is Recourse Indebtedness, exceed $2,000,000 at any time outstanding; provided that no Default or Event of Default has occurred and is continuing at the aggregate amount of time such Secured Debt (excluding the Obligations Indebtedness is incurred and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such periodnone would exist after giving effect thereto;
(j) subject to Indebtedness of the provisions of §9Borrower and its Subsidiaries other than that permitted elsewhere in this Section 9.1, Unsecured Debt which is pari passu incurred with the prior written consent of the Majority Lenders; provided that the aggregate outstanding principal amount of the Indebtedness described in permitted under this clause (a) abovej), provided that such Unsecured Debt described in this §8.1(j) may have any when taken together with the aggregate outstanding principal amount of the Pool Properties or Supplemental Prentice Loans (excluding PIK Interest), shall not at any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debttime exceed $53,000,000; and
(k) unsecured Subordinated Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after which is incurred with the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment prior written consent of the Obligations on terms reasonably acceptable to AgentMajority Lenders. Notwithstanding anything in this Agreement to provided, however, the contraryBorrower will not, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have will not permit any of the Pool Properties or any interest therein or any direct or indirect ownership interest its Subsidiaries to, engage in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness"off balance sheet" financing, provided that the Indebtedness described in §8.1(j) mayincluding, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrowerwithout limitation, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to lease of any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of assets by the Borrower or from and after the Merger, any of CVOP I its Subsidiaries as lessee under any synthetic lease referred to in clause (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(hvi) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to definition of the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreementterm "Indebtedness."
Appears in 1 contract
Restrictions on Indebtedness. The Borrower will not, and Credit Parties will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ai) Indebtedness to the Lenders arising under any of the Loan DocumentsDocuments and Hedge Obligations to a Lender Hedge Provider;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(cii) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries Credit Parties incurred in the ordinary course of business business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(diii) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(eiv) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(fv) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(gvi) subject Indebtedness incurred to the provisions of §9any other landowners, Indebtedness of the Borrower government or CVOP II in respect of Derivatives Contracts that are entered into quasi-government or entity or similar entity in the ordinary course of business in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and not for speculative purposes;
(h) subject to similar agreements incurred in the provisions ordinary course of §9, Non-Recourse Indebtedness that is secured by business in connection with the development of Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions construction of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter infrastructure in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debtconnection therewith; and
(kvii) unsecured Other Indebtedness of the REIT Guarantor and the Borrower (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of REIT Guarantor (other than Borrower or a Subsidiary of Borrower, CVOP II or, Guarantor) from and after the Merger, CVOP I that is a Guarantor shall incurring Indebtedness which would be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to prohibited by the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor§8.1), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement.
Appears in 1 contract
Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor or their respective of its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Senior Lenders arising under any of the Senior Loan Documents;
(b) Indebtedness to the Lenders and the Agents arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors Borrower or their respective Subsidiaries such Subsidiary incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(d) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8Section 8.8;
(e) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the period Borrower or such Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(f) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(g) subject to Indebtedness existing on the provisions of §9, Indebtedness of the Borrower or CVOP II in respect of Derivatives Contracts that are entered into in the ordinary course of business date hereof and not for speculative purposeslisted and described on Schedule 9.1 hereto;
(h) subject Indebtedness owed by the Borrower or any of its Subsidiaries to trade vendors, in the amount of the cost to the provisions Borrower or such Subsidiary of §9inventory held on consignment from such trade vendors, Non-Recourse Indebtedness that is secured by Real Estate (other than including in connection with and pursuant to the Pool Properties or interest therein) and related assets;Trade Vendor Extension Agreement; and
(i) subject Indebtedness of the Borrower and its Subsidiaries other than that permitted elsewhere in this Section 9.1 in an aggregate principal amount not to the provisions of §9, Secured Debt that is Recourse Indebtedness, exceed $2,000,000 at any time outstanding; provided that (i) the aggregate amount Net Proceeds from such Indebtedness are applied in accordance with Section 5.4.5 hereof and (ii) no Default or Event of Default has occurred and is continuing at the time such Secured Debt (excluding the Obligations Indebtedness is incurred and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any timenone would exist after giving effect thereto; provided, however, that for one period the Borrower will not, and will not permit any of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter its Subsidiaries to, engage in which the Merger is consummatedany form of “off balance sheet” financing, if applicableincluding, without limitation, the amount lease of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in assets by the Borrower or any Subsidiary Guarantor of its Subsidiaries as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
lessee under any synthetic lease referred to in clause (kvi) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none definition of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such term “Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement.”
Appears in 1 contract
Samples: Intercreditor and Lien Subordination Agreement (Whitehall Jewellers Inc)
Restrictions on Indebtedness. The Subject to the provisions of Section 9, the Borrower will not, and will not permit any Guarantor or their respective of its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders Banks arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current Current liabilities of the Borrower, the Guarantors Borrower or their respective its Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(dc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §Section 7.8;
(ed) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the period Borrower shall at the time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(fe) endorsements Endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(gf) subject to the provisions of §9, Non-recourse Indebtedness of the Borrower or CVOP II any Subsidiary of the Borrower, provided that neither the Borrower nor any of its Subsidiaries shall incur any Non-recourse Indebtedness in excess of $10,000,000.00 in any single transaction unless it shall have provided to the Agent a statement that no Default or Event of Default exists and a Compliance Certificate demonstrating that the Borrower will be in compliance with its covenants referred to therein after giving effect to such incurrence;
(g) Indebtedness in respect of Derivatives Contracts that are entered into reverse repurchase agreements having a term of not more than 180 days with respect to Investments described in the ordinary course of business and not for speculative purposesSection 8.3(d) or (e);
(h) subject to Indebtedness existing on the provisions date of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest thereinthis Agreement and listed and described on Schedule 8.1(h) and related assetshereto;
(i) subject to Other recourse Indebtedness of the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the Borrower and its Subsidiaries in an aggregate outstanding principal amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) not exceeding $450,000,000.00; provided that neither the Borrower nor any of its Subsidiaries shall not exceed fifteen percent (15.0%) of Gross Asset Value at incur any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the recourse Indebtedness described in clause (athis Section 8.1(i) above, in excess of $10,000,000.00 in any single transaction unless it shall have provided to the Agent a statement that such Unsecured Debt described in this §8.1(j) may have any no Default or Event of the Pool Properties or any interest therein or any direct or indirect ownership interest in Default exists and a Compliance Certificate demonstrating that the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for will be in compliance with its covenants referred to therein after giving effect to such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement.incurrence;
Appears in 1 contract
Samples: Revolving Credit Agreement (Crescent Real Estate Equities Co)
Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor or their respective of its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness or Rental Obligations other than:
(a) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan Documents;
(b) Indebtedness to in existence on the Lender Hedge Providers in respect of any Hedge Obligations;
(c) Effective Date and current liabilities of the BorrowerBorrower or such Subsidiary, the Guarantors or their respective Subsidiaries in each case incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(dc) Indebtedness of the Borrower and its Subsidiaries in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8Section 8.8;
(d) Indebtedness of the Borrower and its Subsidiaries in respect of judgments or awards that have been in force for less than the applicable period for taking and pursuing an appeal so long as execution is not levied thereunder or in respect of which the Borrower or such Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review;
(e) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(f) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(f) Indebtedness of the Borrower and its Subsidiaries consisting of Rental Obligations under operating leases with aggregate payments due in any year not in excess of $5,000,000;
(g) subject Indebtedness consisting of contingent liabilities in respect of litigation against the Borrower so long as such Indebtedness would not be required by the Borrower's independent public accountants to be included in the footnotes to the provisions of §9, Indebtedness financial statements delivered pursuant to Section 8.4(a) or the reserves for which required to be established on the books of the Borrower or CVOP II are not in respect excess of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes$10,000,000;
(h) subject Indebtedness of the Borrower and its Subsidiaries incurred in connection with the Capitalized Lease or acquisition after the date hereof of personal or tangible property by the Borrower or any Subsidiary or the refinancing thereof; PROVIDED that the principal amount of such Indebtedness shall not exceed in any case 90% of the cost, to the provisions Borrower or such Subsidiary, of §9the personal or tangible property so acquired, Non-Recourse and PROVIDED, FURTHER, that the aggregate principal amount of such Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assetsoutstanding shall not exceed $15,000,000 at any time;
(i) subject to Indebtedness in respect of the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that Notes not exceeding the aggregate principal amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period$425,000,000;
(j) subject Indebtedness existing on the date hereof and listed and described on SCHEDULE 9.1 hereto, and Indebtedness incurred pursuant to the provisions refinancing of §9, Unsecured Debt which is pari passu with the such Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none is in an aggregate principal amount no greater than that portion of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debtlisted on SCHEDULE 9.1 hereto so refinanced, (ii) none has a final scheduled maturity later than the final scheduled maturity of the BorrowerIndebtedness refinanced, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of shall not be secured by any lien or any assets that did not secure the Borrower which directly or indirectly owns a Pool Property Indebtedness refinanced, (iv) shall create, incur, assume, guarantee or be or remain liable, contingently, with respect otherwise subject to any Indebtedness other than Indebtedness terms and conditions reasonably satisfactory to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement.Agents;
Appears in 1 contract
Samples: Revolving Credit Agreement (Republic Technologies International Holdings LLC)
Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor or their respective of its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders Banks, the Agents and the Collateral Agent arising under any of the Loan Documents;
(b) Indebtedness to consisting of the Lender Hedge Providers guaranty by the Borrower of rental payment obligations of the Mexican Subsidiary under real property leases so long as the aggregate amount of rental payment obligations so guarantied by the Borrower shall not exceed $200,000 in respect of any Hedge Obligationsfiscal year;
(c) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(d) Indebtedness in respect of taxes, assessments, environmental, governmental charges or other regulatory charges, fines, penalties or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8ofss.11.8;
(ed) Indebtedness in respect of judgments only to the extent, for the period and for an amount or awards not resulting in an Event of DefaultDefault underss.
16.1(i) hereof, but only so long as execution is not levied thereunder on any property the fair market value of which is $250,000 or more in the aggregate or $150,000 or more in any single instance;
(fe) endorsements for collection, deposit or negotiation and warranties of products or servicesservices (including without limitation product liability claims), in each case incurred in the ordinary course of business; and;
(f) Indebtedness evidenced by the Subordinated Notes (including without limitation any Liquidated Damages (as defined in the Indenture) referred to in the Indenture);
(g) subject to obligations under Capitalized Leases not exceeding $1,000,000 in aggregate amount at any time outstanding;
(h) Indebtedness incurred in connection with the provisions acquisition after the date hereof of §9any real or personal property by the Borrower or such Subsidiary, provided that the aggregate principal amount of such Indebtedness of the Borrower and its Subsidiaries shall not exceed the aggregate amount of $1,000,000 at any one time;
(i) Indebtedness existing on the date hereof and listed and described on Schedule 12.1 hereto;
(j) Indebtedness (i) of any Subsidiary of the Borrower which is party to the Guaranty owing to the Borrower or CVOP II of the Borrower to such Subsidiary of the Borrower, or (ii) of the Mexican Subsidiary owing to the Borrower or of the Borrower owing to the Mexican Subsidiary in respect an aggregate amount for all such Indebtedness of Derivatives Contracts that are the Mexican Subsidiary to the Borrower (exclusive of Indebtedness permitted by ss.12.1(b)), when combined with all other Investments in the Mexican Subsidiary permitted by ss.12.3(f)(iii), not to exceed $1,000,000 at any time outstanding;
(k) Indebtedness consisting of Permitted Employee Stock Repurchases (including any promissory notes issued by the Borrower to repurchase common stock of employees and sales representatives of the Borrower solely to the extent permitted in the definition of Permitted Employee Stock Repurchases);
(l) Indebtedness consisting of a Permitted Preferred Stock Replacement;
(m) Indebtedness of the Borrower under Hedging Agreements entered into by the Borrower in the ordinary course of business and not for speculative purposespurposes in order to fix or hedge the Borrower's currency risk in connection with its purchase of foreign currencies so long as the Borrower shall not enter into such Hedging Agreements to hedge in the aggregate at any one time in excess of $4,000,000 worth of foreign currencies;
(hn) subject Indebtedness of the Borrower under Hedging Agreements entered into by the Borrower in the ordinary course of business and not for speculative purposes in order to fix or hedge the provisions Borrower's commodity risk in connection with its purchase of §9, Non-Recourse Indebtedness that is secured by Real Estate Precious Metal so long as such Hedging Agreements (other than i) consist of options or (ii) are entered into with the Pool Properties Gold Agent or interest therein) and related assetsany of the Banks;
(o) Indebtedness consisting of guaranties of Indebtedness of employees for moving, entertainment, travel and other similar expenses solely to the extent permitted as Investments underss.12.3(h)
(p) Indebtedness consisting of guaranties of Indebtedness of sales representatives to finance the acquisition of sales territories to the extent permitted as Investments under ss.12.3(o);
(q) Indebtedness in respect of operating leases and in respect of the payment of royalties or other similar obligations under license agreements which license agreements are generally consistent with and related to the past practices and business of the Borrower;
(r) Indebtedness in respect of employee benefits, whether current or retired employees, including, without limitation, accrued expenses, pension liabilities, deferred compensation, bonus plans, medical, dental and other plans providing benefits for employees;
(s) Indebtedness arising out of or related to (i) subject the Acquisitions or (ii) the consolidation of the businesses acquired from the Balfour Sellers or the CJC Sellers pursuant to the provisions Acquisitions (including without limitation, increased severance payments, working capital adjustments, fees and costs), in each case solely to the extent that such Indebtedness is not related to the borrowing of §9money or the obtaining of credit;
(t) Indebtedness consisting of the CH Management Fee and any deferred portion thereof to the extent permitted pursuant toss.12.4 and 12.12 hereof;
(u) Indebtedness consisting of accrued Permitted Preferred Stock Dividends or accrued dividends on any Permitted Preferred Stock Replacement;
(v) Indebtedness consisting of obligations to Specified Refiners solely in respect of amounts of Precious Metal credited or consigned to the Borrower in exchange for unrefined Precious Metal sent by the Borrower to such Specified Refiners;
(w) Indebtedness in respect of performance, Secured Debt that is Recourse Indebtedness, provided that the bid or advance payment bonds incurred in connection with bids on school ring contracts in an aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not to exceed fifteen percent (15.0%) of Gross Asset Value $400,000 outstanding at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(jx) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or Borrower and its Subsidiaries other than that permitted elsewhere in thisss.
12.1 in an aggregate principal amount not to exceed (i) at all times prior to January of 1999, $1,000,000 at any interest therein or time outstanding and (ii) at all times during and after January of 1999, $5,000,000 at any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debttime outstanding; and
(ky) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, Borrower with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this certain Master Lease Agreement, No. 136331, dated as of August 2, 1994, between Town & Country Corporation and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject Computer Sales International, Inc. not to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreementexceed $225,000.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Gold Consignment Agreement (Commemorative Brands Inc)
Restrictions on Indebtedness. The Borrower Subject to the provisions of Section 9, the Borrowers and the Guarantors will not, and will not permit any Guarantor or their respective of the Unrestricted Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders Banks and Agent arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries such Persons incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(dc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §Section 7.8;
(ed) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which such Person shall at the period time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(fe) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(f) Indebtedness in respect of reverse repurchase agreements having a term of not more than 180 days with respect to Investments described in Section 8.3(a), (b) or (e);
(g) subject the Subordinate Debt in an amount not to exceed $35,000,000.00, provided that repayment of such Indebtedness and any guaranty, pledge, security or other assurance of repayment thereof shall be subordinate at all times to repayment of the Obligations pursuant to a subordination agreement or other agreement substantially in the form of the Subordination Agreement or otherwise satisfactory to the provisions Majority Banks;
(h) as to the WPH Subsidiaries, the Capitalization Loans;
(i) the Participating Equity Loans; PROVIDED, however, that the sum of §9the Participating Equity Loans plus the Allowed Venture Financing may not exceed $125,000,000.00 in the aggregate, provided, further, however, that such amount shall decrease to $80,000,000.00 commencing on March 31, 2002;
(j) the Allowed Venture Financing in an aggregate amount at any time not to exceed the product obtained by multiplying three (3) times the sum of (x) the aggregate Consolidated Tangible Net Worth of the Unrestricted Subsidiaries PLUS (y) the aggregate principal amount of the Participating Equity Loans PLUS (z) the aggregate principal amount of the Capitalization Loans (excluding Capitalization Loans made to any of the Borrowers); PROVIDED, however, that the Allowed Venture Financing shall be further limited by the restrictions set forth in Section 8.1(i) above;
(k) Indebtedness of WPHD, WPHD II and Xxxxxx under guaranties with respect to the Allowed Venture Financing, not to exceed $20,000,000.00 as to WPHD individually at any time; PROVIDED, however, that such amount shall decrease to $15,000,000.00 commencing on March 31, 2001, unless at such time (i) the sum of WPHD EBITDA for any Test Period is greater than 2.0 times the Interest Incurred of WPHD and its Subsidiaries, on a consolidated basis, for such Test Period, and (ii) the Consolidated Tangible Net Worth of the Combined WPH Entity and its Subsidiaries exceeds $105,000,000.00; PROVIDED, FURTHER, however, that such limit on such Indebtedness may later increase back up to $20,000,000.00 if and for so long as compliance with such tests is demonstrated;
(l) Indebtedness of the Borrower or CVOP II Borrowers and the Unrestricted Subsidiaries in respect of Derivatives Contracts reimbursement obligations relating to drafts that are entered into may be drawn under Third Party Letters of Credit incurred in the ordinary course of business and not for speculative purposesto exceed $5,000,000.00 in the aggregate;
(hm) subject Indebtedness of the Borrowers and the Unrestricted Subsidiaries in respect of purchase money obligations incurred in connection with the purchase of Real Estate, not to exceed $25,000,000.00 as to the provisions of §9Borrowers collectively, Non-Recourse Indebtedness PROVIDED that is secured by Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for secured only by such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured DebtReal Estate, (ii) none there is no recourse to any of the Borrower, Borrowers or any of the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to for the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate payment of such PersonIndebtedness, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary such Indebtedness shall be incurred if a Default or Event of Default exists or will exist after the incurrence of such Indebtedness;
(n) Indebtedness of the Borrower which directly or indirectly owns a Pool Property shall createBorrowers, incur, assume, guarantee or be or remain liable, contingently, the Guarantors and the Unrestricted Subsidiaries with respect to any Bonding Obligations (less the aggregate value of completed work) in an amount not to exceed sixty percent (60%) of the Consolidated Tangible Net Worth of the Combined WPH Entity and its Subsidiaries;
(o) Indebtedness other than of the Borrowers and Guarantors in respect of interest rate swap, collar, cap or similar agreements providing interest rate protection in an aggregate amount not to exceed $50,000,000.00; and
(p) After the consummation of the Xxxxxxx Merger, Working Capital Advances. Notwithstanding the foregoing, new Indebtedness pursuant to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §Section 8.1(j) subject or (k) shall not be incurred unless the Combined WPH Entity or the applicable Guarantor or Borrower shall have provided the Agent a statement certified by the Authorized Officer of such Person that no Default or Event of Default exists or will exist after the incurrence of such Indebtedness, which statement shall include a calculation demonstrating that such Person will be in compliance with the requirement of Section 8.1(j) or (k) after giving effect to the terms of this Agreementsuch incurrence.
Appears in 1 contract
Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors Guarantor or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(dc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(ed) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(fe) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and
(gf) subject to the provisions of §9, Indebtedness of the Borrower or CVOP II in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes;
(g) subject to the provisions of §9, Indebtedness in respect of Capitalized Leases and claims under environmental indemnities or with respect to Non-Recourse Exclusions (with the liability with respect to Non-Recourse Exclusions determined pursuant to clause (h) of the definition of Indebtedness) not to exceed $15,000,000.00 (excluding environmental claims covered by insurance) in the aggregate at any one time (provided that the foregoing shall not limit the terms of §12.1(f));
(h) subject to the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Mortgaged Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt or Unsecured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) Indebtedness shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt$75,000,000.00; and
(kj) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I Borrower to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I Borrower that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i8.1(i) above shall have any of the Pool Mortgaged Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iiiz) no Subsidiary of the Borrower which directly or indirectly owns a Pool Mortgaged Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Tier Reit Inc)
Restrictions on Indebtedness. The Each of AmeriKing, Holdings and the ------------ -- ------------ Borrower will not, and will not permit any Guarantor or their respective of its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders Banks and the Agent arising under any of the Revolver Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the BorrowerAmeriKing, Holdings, the Guarantors Borrower or their respective Subsidiaries such Subsidiary incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(dc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8(S)8.8;
(ed) Indebtedness in respect of judgments only to or awards that have been in force for less than the extentapplicable period for taking an appeal so long as execution is not levied thereunder and AmeriKing, Holdings, the Borrower or such Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for the period review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(fe) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and
(g) subject to the provisions of §9, Indebtedness of the Borrower or CVOP II in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes;
(h) subject to the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement.
Appears in 1 contract
Restrictions on Indebtedness. The Borrower Borrowers will not, and will not ------------------------------ permit any Guarantor or of their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders Banks and the Administrative Agent arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors such Borrower or their respective Subsidiaries such Subsidiary incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(dc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies and liabilities under employee benefit plans, including, without limitation, pension plans, to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8ss.8.8;
(d) Indebtedness in an aggregate amount not to exceed $1,000,000 in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which such Borrower or such Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review;
(e) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(f) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(f) Securitizations with respect to which the obligor is a special-purpose, bankruptcy-remote Subsidiary of FAC, neither FCI, FAC nor any of FCI's other Subsidiaries is directly or indirectly liable for any indebtedness or obligations incurred by such special-purpose bankruptcy remote Subsidiary, and neither FAC, FCI nor any of FCI's other Subsidiaries is obligated to repurchase defaulted Base Contracts sold to such special-purpose, bankruptcy-remote Subsidiary as part of such Securitization;
(g) subject purchase-money Indebtedness (exclusive of any Indebtedness permitted pursuant to (l) below) incurred in connection with the provisions acquisition of §9any real or tangible personal property by FCI or its Subsidiaries (other than FCC and Nonconsolidated Subsidiaries) or the construction of improvements on any real property owned by FCI or its Subsidiaries (other than FCC and Nonconsolidated Subsidiaries), provided -------- that (A) such Indebtedness of the Borrower is non-recourse to FCI or CVOP II in respect of Derivatives Contracts that are entered into such Subsidiary and ---- (B) such Indebtedness does not exceed in the ordinary course aggregate at any time ten percent (10%) of business and not for speculative purposesConsolidated Tangible Net Worth;
(h) subject unsecured Indebtedness of a Guarantor to FCI or of FCI to a Guarantor which is expressly subordinated and made junior to the provisions payment and performance of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assetsObligations;
(i) subject Indebtedness existing on the date hereof and listed and described on Schedule 9.1 hereto and renewals which do not increase the amount -------- --- thereof, in each case satisfactory to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such periodAdministrative Agent;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; andIntentionally deleted;
(k) unsecured obligations of FRC, FCC and FFC-II to FAC under the Receivables Purchase Agreements;
(l) Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I Borrowers under Capitalized Leases in an amount not to Borrower, CVOP II or, from and after exceed $20,000,000 in the Merger, CVOP I, respectively; provided that aggregate at any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement.time outstanding;
Appears in 1 contract
Samples: Revolving Credit Agreement (Fairfield Communities Inc)
Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor or their respective of its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors Borrower or their respective its Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(dc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(ed) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(fe) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and
(gf) subject to the provisions of §98.1, Indebtedness of the Borrower or CVOP II in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes;
(g) subject to the provisions of §8.1, Non-Recourse Indebtedness of Subsidiaries of Borrower (other than any Guarantor) that is secured by Real Estate and related assets (which may include the Equity Interests of Subsidiaries that own Real Estate provided that such Real Estate is not an Unencumbered Pool Property); and
(h) subject to the provisions of §98.1, Non-Secured Debt or Unsecured Debt of Borrower that is Recourse Indebtedness that is secured and which Unsecured Debt may be guaranteed by Real Estate Guarantors, provided no Unsecured Debt (other than the Pool Properties or interest thereinPermitted Unsecured Debt) shall be permitted without the prior written consent of the Required Lenders; and related assetsprovided further, provided that the aggregate amount of all such Secured Debt that is Recourse Indebtedness (exclusive of the Obligations) shall not exceed ten percent (10%) of Consolidated Total Adjusted Asset Value;
(i) subject to the provisions of §98.1, Secured Unsecured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations Borrower and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any timeGuarantors; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;and
(j) subject unsecured intercompany loans and advances to the provisions of extent permitted by §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively8.4; provided that any if Borrower or SCA is an obligor with respect to such Indebtedness of a Subsidiary of Borrowerintercompany loan, CVOP II or, from and after the Merger, CVOP I that is a Guarantor such loan shall be subordinate subordinated in right and time of payment to the repayment of the Obligations on terms reasonably acceptable pursuant to a subordination agreement satisfactory to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iiiw) no Subsidiary of the Borrower which directly or indirectly owns a an Unencumbered Pool Property Asset or Intercompany Loan shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documentsapplicable Intercompany Loan, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of §7.20(a)(xi), Intercompany Revolver, Hybrid Lease or Qualifying Note Receivable permitted by this Agreement and the Indebtedness permitted under §8.2(b), (c) and (e), provided that if such Subsidiary is also a Guarantor, such Guarantor shall have no Indebtedness other than Indebtedness under §8.2(a) and (h,(b), (c), (e), (i) (to the extent permitted in clause (h)i) and, as to SCA only, (j), (x) no Indebtedness which is a warehouse facility, repurchase agreement (except as permitted by §8.4(f)) or similar Indebtedness shall be permitted without the prior written consent of the Required Lenders, (y) except as permitted by clause (z) below, no Indebtedness (other than the Obligations) shall have any Unencumbered Pool Asset, Intercompany Loan or direct or indirect ownership interest in any Unencumbered Pool Asset, Intercompany Loan, Borrower, Hybrid Lease Fee Owner or Guarantor as collateral, a borrowing base, unencumbered asset pool or similar form of credit support for such Indebtedness, and (z) the Permitted Unsecured Debt and other Unsecured Debt of Borrower approvedpermitted pursuant to §8.2(hi) may have the Unencumbered Pool Assets and Intercompany Loans as an unencumbered borrowing base for such Indebtedness, unencumbered asset pool or similar unsecured form of credit support for such Indebtedness and may contain restrictions on direct or indirect ownership of Guarantors and Hybrid Lease Fee Owners, which restrictions are no more restrictive than the restrictions contained in this Agreement.
Appears in 1 contract
Restrictions on Indebtedness. The Guarantor will not (other than solely as a result of its status as a general partner of the Borrower) create, incur, assume, guarantee or be or remain liable, contingently or otherwise with respect to any Indebtedness other than the Obligations and any Indebtedness of the Borrower permitted under the terms of this Section 8.
1. The Borrower will not, and will not permit any Guarantor or their respective of its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a1) Indebtedness to the Lenders Banks arising under any of the Loan Documents, and Indebtedness and obligations in respect of the Interest Rate Contract required pursuant to Section 7.15;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c2) current liabilities of the Borrower, the Guarantors Borrower or their respective its Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(d3) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §Section 7.8;
(e4) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the period Borrower shall at the time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(f5) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(g6) subject to the provisions of §Section 9, (i) Non-recourse Indebtedness of the Borrower or CVOP II any of its Subsidiaries, provided that neither the Borrower nor any of its Subsidiaries shall incur any Non-recourse Indebtedness unless the Borrower shall have provided to the Banks a statement that no Default or Event of Default exists and a Compliance Certificate demonstrating that the Borrower will be in compliance with the covenants referred to therein after giving effect to such incurrence, and environmental indemnities and customary exceptions to exculpatory language shall be permitted in any such Non-recourse Indebtedness, and (ii) Indebtedness of Borrower under environmental indemnities and guarantees with respect to customary exceptions to exculpatory language with respect to Non-recourse Indebtedness of its Subsidiaries or joint ventures permitted pursuant to Section 8.3(k) (provided that in the event any claim is made against Borrower or any of its Subsidiaries with respect to such indemnities or exceptions, the amount so claimed shall be considered a recourse liability of such Person);
(7) Indebtedness in respect of Derivatives Contracts reverse repurchase agreements having a term of not more than 180 days with respect to Investments described in Section 8.3(d) or (e);
(8) subject to the provisions of Section 9, other unsecured recourse Indebtedness of the Borrower and its Subsidiaries in an aggregate outstanding principal amount (excluding the Obligations and Indebtedness (not to exceed $25,000,000.00) arising under the Unsecured Term Loan Agreement), not exceeding $5,000,000.00; provided that are entered into neither the Borrower nor any of its Subsidiaries shall incur any recourse Indebtedness described in this Section 8.1(h) unless the Borrower shall have provided to the Banks a statement that no Default or Event of Default exists and a Compliance Certificate demonstrating that the Borrower will be in compliance with the covenants referred to therein after giving effect to such incurrence;
(9) Indebtedness in respect of purchase money financing for equipment, computers and vehicles acquired in the ordinary course of the Borrower's business and not for speculative purposesexceeding $1,000,000.00;
(h10) subject to the provisions of §Section 9, Non-Recourse Indebtedness recourse debt to obtain a construction loan or loans or obligations under completion guarantees in an aggregate amount not exceeding $70,000,000.00; provided that is secured by Real Estate (other than the Pool Properties liability under any completion guaranty shall equal the remaining costs to complete the applicable construction project in excess of construction loan or interest therein) mezzanine loan proceeds available therefor and related assetsany equity deposited or invested for the payment of such costs;
(i11) Indebtedness (not to exceed $25,000,000.00) arising under the Unsecured Term Loan Agreement; provided, however, that Indebtedness permitted under this Section 8.1(k) shall not include any Indebtedness arising out of or related to any refinancing or purported refinancing of such Indebtedness under the Unsecured Term Loan Agreement;
(12) subject to the provisions of §Section 9, Secured Debt that is Recourse Indebtednessunsecured Indebtedness of Borrower under guarantees of loans made to employees of Guarantor to purchase stock in Guarantor, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall Indebtedness does not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following $15,000,000.00 in the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such periodaggregate;
(j13) subject to the provisions of §Section 9, Unsecured Debt which is pari passu other unsecured recourse Indebtedness of the Borrower and its Subsidiaries in an aggregate outstanding principal amount not exceeding $5,000,000.00 in connection with the issuance of letters of credit on behalf of Borrower or any of its Subsidiaries; and
(14) subject to the provisions of Section 9, unsecured Indebtedness described in clause (a) aboveunder guarantees to joint venture partners relating to the repurchase of ownership interests of such joint venture partners, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest Indebtedness does not exceed $15,000,000.00 in the Borrower or any Subsidiary Guarantor as an unsecured borrowing baseaggregate, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided further that any such guaranty may at the option of Agent not be considered as Indebtedness for the purposes of a Subsidiary Section 9.2 of Borrower, CVOP II or, from and after this Agreement in the Merger, CVOP I event that is a Guarantor Agent shall be subordinate determine in its sole discretion that circumstances relating to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect Real Estate to which there such guaranty relates are such that it is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of not likely that such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or guaranty would be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreementcalled upon.
Appears in 1 contract
Samples: Master Revolving Credit Agreement (Ramco Gershenson Properties Trust)
Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor or their respective of its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders Banks arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors Borrower or their respective its Subsidiaries incurred in the ordinary course of business business, including letters of credit not to exceed $1,500,000.00 in the aggregate, but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(dc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §Section 7.8;
(ed) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the period Borrower shall at the time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(fe) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(gf) subject to the provisions of §Section 9, Non-recourse Indebtedness of the Borrower or CVOP II any Subsidiary of the Borrower related to the acquisition of Real Estate or a refinance of the Prudential Loan in an aggregate outstanding principal amount not to exceed thirty-five percent (35%) of the value of the Consolidated Total Assets of the Borrower, adjusted pursuant to Section 9.7;
(g) Indebtedness in respect of Derivatives Contracts that are entered into reverse repurchase agreements having a term of not more than 180 days with respect to Investments described in the ordinary course of business and not for speculative purposesSection 8.3(d) or (e);
(h) subject The Prudential Loan, provided the Prudential Loan shall remain Non-recourse as to the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assetsBorrower;
(i) subject Indebtedness not to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that exceed $2,000,000.00 in the aggregate amount in respect of such Secured Debt (excluding note purchase agreement(s) relating to loans made to executive officers of the Obligations and Borrower for the Hedge Obligations) shall not exceed fifteen percent (15.0%) purchase of Gross Asset Value at any timeshares of beneficial interest in the Borrower; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;and
(j) subject unsecured Debt Offerings which have been granted an Investment Grade Rating by either of the Rating Agencies at the time of issuance provided (i) at the time such Indebtedness is issued the scheduled maturity date of such Indebtedness is not sooner than six (6) days after the Maturity Date (after giving effect to any extension of the Maturity Date which may have been requested by the Borrower prior to the provisions issuance of §9such Indebtedness or approved by the Banks, Unsecured Debt which is pari passu whether or not the same has become effective), and (ii) Borrower shall exercise its best efforts to ensure that any covenants or restrictions imposed upon the Borrower, the Guarantor or their respective Subsidiaries in connection with such Indebtedness shall not individually or in the aggregate be more restrictive against the Borrower, the Guarantor and their respective Subsidiaries than the covenants and restrictions imposed pursuant to this Agreement or the other Loan Documents, but in any event, the covenants and restrictions imposed in connection with such Indebtedness shall not be more restrictive than the covenants and restrictions contained in Section 8.1, Section 8.2, Section 8.3, Section 8.7 and Section 9 of this Agreement; and provided further that neither the Borrower, Guarantor nor any of their respective Subsidiaries shall incur any of the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §Section 8.1(j) may unless it shall have any provided to the Banks prior written notice of the Pool Properties proposed issuance of such Indebtedness, a statement that no Default or any interest therein or any direct or indirect ownership interest in Event of Default exists and a certificate that the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for will be in compliance with its covenants referred to herein after giving effect to such Unsecured Debtincurrence; and
(k) unsecured Indebtedness of Subsidiaries to Borrower or other Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any repayment of such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate at all times to the repayment of the Obligations on terms reasonably acceptable pursuant to Agent. Notwithstanding anything a subordination and standstill agreement in this Agreement form satisfactory to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this AgreementMajority Banks.
Appears in 1 contract
Samples: Revolving Credit Agreement (Meridian Industrial Trust Inc)
Restrictions on Indebtedness. The Borrower Borrowers will not, and will not permit any Guarantor or their respective Subsidiaries or REIT to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors Borrowers or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(dc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(ed) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of a Default;
(fe) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and
(gf) subject to the provisions of §9, Indebtedness of the Borrower or CVOP II in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes;
(h) subject to the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt Indebtedness (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.015%) of Gross Asset Value at Value, and (ii) Non-Recourse Indebtedness, provided that none of such Persons shall incur any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j8.1(f) may unless it shall have any provided to the Agent prior written notice of the Pool Properties proposed incurrence of such Indebtedness, a statement that the borrowing will not cause a Default or any interest Event of Default and a Compliance Certificate demonstrating that the Borrowers will be in compliance with its covenants referred to therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate giving effect to the repayment incurrence of the Obligations on terms reasonably acceptable to Agentsuch Indebtedness. Notwithstanding anything in this Agreement to the contrary, (i) none of the Borrowers or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable contingently or otherwise, with respect to any Unsecured Indebtedness, (ii) none of the Indebtedness described in §8.1(h) and (i8.1(f) above shall have any of the Pool Mortgaged Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor Borrower as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, Indebtedness (provided that the foregoing shall not preclude Subsidiaries of the Borrowers (other than a Subsidiary Borrower) to incur Non-Recourse Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any §8.1 or recourse to the general credit of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, Parent Borrower) and (ii) none of the Borrower, the Guarantors or their respective Subsidiaries Subsidiary Borrowers nor REIT shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (including, without limitation, pursuant to any conditional or limited guaranty or indemnity agreement creating liability with respect to usual and customary exclusions from the non-recourse limitations governing the Non-Recourse Indebtedness of any Person, or otherwise) other than Indebtedness to the Lenders arising under the Loan Documentsdescribed in §§8.1(a)-(e) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreementabove.
Appears in 1 contract
Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(d) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(e) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of a Default;
(f) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(g) subject to the provisions of §9, Indebtedness of the Borrower or CVOP II in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposesNon-Recourse Indebtedness;
(h) [Intentionally Omitted]; and subject to the provisions terms of this §98.1, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assets;any PPP Loan; and
(i) subject to the provisions of §9, Secured Debt that is Recourse IndebtednessIndebtedness of the REIT and its Subsidiaries, provided that the aggregate amount of such Secured Debt Recourse Indebtedness (excluding the Obligations and the Hedge Obligations) shall not at any time exceed fifteen ten percent (15.010%) of Gross Consolidated Total Asset Value at any timeValue; providedprovided further, however, that the Aloft Atlanta Term Loan shall be excluded for one period the purposes of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, determining the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%in this §8.1(i) during such period;
the period beginning on the date of the incurrence of the Aloft Atlanta Term Loan, and ending six (j6) subject calendar months thereafter. Notwithstanding anything in this Agreement to the provisions contrary, except as provided in clause (x) below of §9this paragraph, Unsecured Debt which is pari passu with (i) none of the Indebtedness described in clause §8.1(g), (ah) above, provided that such Unsecured Debt described in this §8.1(jor (i) may above shall have any of the Pool Borrowing Base Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, and (ii) none of the Borrower, the Subsidiary Guarantors or their respective Subsidiaries any other Subsidiary of Borrower which, directly or indirectly, owns or leases (whether pursuant to a Ground Lease or an Operating Lease) a Borrowing Base Property shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (including, without limitation, pursuant to any conditional or limited guaranty or indemnity agreement creating liability with respect to usual and customary exclusions from the non-recourse limitations governing the Non-Recourse Indebtedness of any Person, or otherwise) other than Indebtedness to the Lenders arising under the Loan Documentsdescribed in §§8.1(a), 8.1(b), 8.1(c), 8.1(d), 8.1(e) and 8.1(f); provided further that (x) a Subsidiary Guarantor may be liable with respect to which there is a Lien on any Equity Interests, right to receive Distributions Capital Leases and purchase money Liens financing equipment used solely at such Subsidiary Guarantor’s Hotel Property (whether owned or similar right in any Subsidiary or Unconsolidated Affiliate of such Personleased), provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) aggregate of all such obligations for all Subsidiary Guarantors shall not exceed $250,000.00 at any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject time. Notwithstanding anything to the terms of contrary in this Agreement, and (B) including without limitation, this §8.1, neither the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms Borrower, Guarantor, nor any of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property their respective Subsidiaries shall create, incur, assume, guarantee or be or remain become liable, contingentlycontingently or otherwise, (A) on or after March 30, 2020 with respect to any Recourse Indebtedness expect for (i) Recourse Indebtedness under this Agreement and, (ii) a Paycheck Protection Program loanloans under the Coronavirus Aid, Relief, and Economic Security Act in an aggregate amount not to exceed $2,700,000.00 (individually and collectively, the “PPP Loan”) (provided that for the purposes of calculating compliance with the financial covenants, such Paycheck Protection Program loan shall not be considered Indebtedness for so long as no principal and interest is payable with respect thereto), (iii) the Initial Subordinate Debt provided that such Indebtedness is recourse solely to the REIT, is Unsecured Indebtedness and otherwise complies with the terms of §8.17, and such Indebtedness is subject to a Subordination and Standstill Agreement, (iv) Future Subordinate Debt provided that such Indebtedness is recourse solely to the REIT, such Indebtedness is Unsecured Indebtedness, such Indebtedness otherwise complies with the terms of §8.17, and such Indebtedness is subject to a Subordination and Standstill Agreement, and (v) the IRSA Note, or (B) on or after the date of the Ninth Amendment to Credit Agreement, with respect to any other Indebtedness other than except (i) as permitted by cause (A) above of this paragraph, and (ii) the refinancing of existing Indebtedness to (but for the Lenders arising under avoidance of doubt, specifically excluding Subordinate Debt and the Loan Documents, IRSA Note) permitted by this Agreement provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject amount of such refinancing Indebtedness shall not exceed the principal amount of the Indebtedness being refinanced (plus reasonable costs and expenses related thereto), the collateral, if any, for such refinancing Indebtedness shall be limited only to the terms collateral security the Indebtedness being refinanced, and no Person shall have any direct or indirect liability with respect to such refinancing Indebtedness except those Persons directly liable with respect to the Indebtedness being refinanced and only to the extent of this Agreementsuch liability with respect to the original Indebtedness being refinanced.
Appears in 1 contract
Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(d) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(e) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(f) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(g) subject to the provisions of §9, Indebtedness of the REIT, the Borrower, International Holdco, Global II Holdco or any other Subsidiary of Borrower (other than a Subsidiary of Borrower which is a Guarantor or CVOP II an Unencumbered Property Subsidiary) in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes;; and
(h) subject to the provisions of §9, (i) Non-Recourse Indebtedness that is secured by Real Estate (other than the Unencumbered Pool Properties Assets or interest therein) and related assets;assets (and guaranties of Non-Recourse Exclusions with respect to such Indebtedness), and (ii) Secured Recourse Indebtedness (and guaranties of such Indebtedness), provided that no such Secured Recourse Indebtedness shall be secured by any Unencumbered Pool Asset or interest therein; and
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount Unsecured Indebtedness (and guaranties of such Secured Debt Indebtedness) (excluding in each case, other than Indebtedness of the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described type included in clause (af) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from REIT and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agentits Subsidiaries. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Unencumbered Pool Properties Assets or any interest therein or any direct or indirect ownership interest in the Borrower, any Subsidiary Guarantor or the Unencumbered Property Subsidiary owning such asset as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, and (ii) none of the BorrowerSubsidiaries of Borrower which directly or indirectly own or lease an Unencumbered Pool Asset (including, the Guarantors or their respective Subsidiaries without limitation, any Unencumbered Property Subsidiary) shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness including, without limitation, pursuant to the Lenders arising under the Loan Documents) any conditional or limited guaranty or indemnity agreement creating liability with respect to which there is a Lien on usual and customary exclusions from the non-recourse limitations governing the Non-Recourse Indebtedness of any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, or otherwise) other than (X) Indebtedness described in §§8.1(a), 8.1(b), 8.1(c), 8.1(d), 8.1(e), 8.1(f) or 8.1(i), (Y) solely with respect to International Holdco and Global II Holdco, §8.1(h) above (provided that (A) (1) Borrowersuch Indebtedness shall not be secured by an Unencumbered Pool Asset, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor asset related thereto or any Person having interest therein, nor any direct or indirect ownership interest of the Borrower, any Guarantor or any of their respective Subsidiaries in any such Subsidiary GuarantorUnencumbered Property Subsidiary), and (Z) solely with respect to Merger Sub and RTL OP, guaranties of Non-Recourse Exclusions or Secured Recourse Indebtedness permitted under §8.1(h) and existing as of the Second Amendment Date (as the same may be amended, modified, extended or refinanced subject to the terms and conditions of this Agreement) (provided that such Indebtedness shall not be secured by an Unencumbered Pool Asset, any asset related thereto or any interest therein, nor any direct or indirect interest of the Borrower, any Guarantor or any of their respective Subsidiaries in any Unencumbered Property Subsidiary), and (iii) REIT shall not create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by (including, without limitation, pursuant to any conditional or limited guaranty or indemnity agreement creating liability with respect to usual and customary exclusions from the non-recourse limitations governing the Non-Recourse Indebtedness of any Person, or otherwise) other than Indebtedness described in §§8.1(a)-(g) and (i) above and, solely with respect to REIT providing unsecured guaranties of such Indebtedness, the Indebtedness described in §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreementabove.
Appears in 1 contract
Restrictions on Indebtedness. The Borrower will not, and Company will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:than the following("Permitted Indebtedness"):
(a) Indebtedness to outstanding under the Lenders arising under any Credit Agreement; provided, however, that the amount of such Indebtedness shall not exceed the sum of: (i) in the case of a revolving credit facility, the greater of (A) $10,000,000, or (B) the amount that the aggregate amount of credit that can be advanced based upon customary advance rates for the Company's accounts receivable and inventory, the determination of the Loan Documentscustomary nature of such advance rates to be made from time to time in the reasonable judgment of the lender or lenders under the Credit Agreement plus (ii) the outstanding principal balance of the term loan evidenced by the Term Note (or a Refinancing Agreement in respect thereof);
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current Current liabilities of the Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business but not incurred through through: (i) the borrowing of money, ; or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services; provided, however, that the Company shall pay such open accounts in accordance with its customary trade practices except where the Company is contesting in good faith the amount or validity thereof by appropriate proceedings and then only to the extent that the Company has set aside on its books adequate reserves with respect thereto in accordance with Generally Accepted Accounting Principles;
(dc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8Section 7.5 hereof;
(ed) Indebtedness in respect of of: (i) judgments only to or awards which have been in force for less than the extent, applicable period for the period and for taking an amount appeal so long as execution is not resulting in an Event of Default;
(f) endorsements for collection, deposit levied thereunder or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and
(g) subject to the provisions of §9, Indebtedness of the Borrower or CVOP II in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes;
(h) subject to the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated Company shall at the time in good faith be prosecuting an appeal or proceedings for review and one (1) partial fiscal quarter period to include the quarter in respect of which the Merger is consummated, if applicable, the amount a stay of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above execution shall have any of the Pool Properties been obtained pending such appeal or any interest therein review; or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borroweractions, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement.suits
Appears in 1 contract
Samples: Securities Purchase Agreement (Meade Instruments Corp)
Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor or their respective of its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders Banks arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors or their respective Borrower and its Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(dc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §Section 7.8;
(ed) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the period Borrower shall at the time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(fe) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(f) Indebtedness in respect of reverse repurchase agreements having a term of not more than 180 days with respect to Investments described in Section 8.3(d) or (e); and
(g) subject to the provisions of §Section 9, Indebtedness of the Borrower or CVOP II in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes;
(h) subject to the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date described on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement.SCHEDULE 8.1
Appears in 1 contract
Restrictions on Indebtedness. The Borrower and the Guarantors will not, and will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily customarily, extended and in fact extended in connection with normal purchases of goods and services;
(dc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(ed) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of a Default;
(fe) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(f) subject to the provisions of §9, Non-Recourse Indebtedness of the REIT, Borrower and their respective Subsidiaries (other than the Subsidiary Guarantors or any other Subsidiary of the Borrower owning an interest in a Subsidiary Guarantor); provided that REIT or the Borrower may provide a guaranty or indemnity with respect to Non-Recourse Exclusions in connection with such Non-Recourse Indebtedness; and
(g) subject to the provisions of §9, Indebtedness of the Borrower or CVOP II in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes;
(h) subject to the provisions of §9, other than Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; providedthe REIT, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated Borrower and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agenttheir respective Subsidiaries. Notwithstanding anything in this Agreement to the contrary, (i) none of the Subsidiary Guarantors shall create, incur, assume, guarantee or be or remain liable contingently or otherwise, with respect to any Indebtedness described in §8.1(h8.1(f) or any Indebtedness described in §8.1(g) that is Secured Indebtedness, (ii) a Subsidiary Guarantor shall only provide a guaranty of other Unsecured Indebtedness of the Borrower permitted pursuant to §8.1(g), and (iiii) above none of the Indebtedness described in §8.1(f) or §8.1(g) that is Secured Indebtedness shall have any of the Pool Unencumbered Borrowing Base Properties or any interest therein or equipment related thereto or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, Indebtedness (provided that the foregoing shall not preclude REIT or the Borrower from incurring liability with respect to Non-Recourse Exclusions in connection with the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor8.1(f), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement).
Appears in 1 contract
Samples: Term Loan Agreement (Mid America Apartment Communities Inc)
Restrictions on Indebtedness. The Borrower and the Holding Company will not, and will not permit any Guarantor or of their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other thanIndebtedness; PROVIDED, HOWEVER, that the Borrower and its Subsidiaries (and with respect only to SUBSECTIONS (a), (c), (d), (f), (j), (l), and (o) below, the Holding Company) may create, incur, assume, guarantee or be or remain liable with respect to:
(a) Indebtedness to the Lenders and the Agent arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors Borrower or their respective Subsidiaries such Subsidiary incurred in the ordinary course of business but business, not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(dc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8SECTION 9.8 above;
(ed) Indebtedness in respect of judgments only to or awards that have been in force for less than the extentapplicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the Borrower, such Subsidiary or the Holding Company (as the case may be) shall at the time in good faith be prosecuting an appeal or proceedings for the period review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(fe) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(f) Subordinated Debt;
(g) subject to obligations under Capitalized Leases not exceeding $1,000,000 in aggregate amount at any time outstanding;
(h) Indebtedness incurred in connection with the provisions acquisition after the date hereof of §9, any real or personal property by the Borrower or such Subsidiary; PROVIDED that the aggregate principal amount of such Indebtedness of the Borrower and its Subsidiaries shall not exceed the aggregate amount of $1,000,000 at any one time;
(i) Indebtedness incurred in connection with Interest Rate Protection Agreements entered into by the Borrower pursuant to SECTION 9.16 hereof;
(j) Indebtedness existing on the Closing Date and listed and described on SCHEDULE 10.1 hereto;
(k) Other Indebtedness to which the Agent shall have given its prior written consent; PROVIDED that such Indebtedness does not exceed in the aggregate $1,000,000 at any one time;
(l) Indebtedness of the Borrower to any of its Subsidiaries or CVOP II the Holding Company; guarantees, endorsements or other contingent obligations of the Borrower in respect of Derivatives Contracts Indebtedness of any Subsidiary of the Borrower permitted hereunder; or any Indebtedness of any Subsidiary of the Borrower or of the Holding Company to the Borrower; PROVIDED, that are entered into such Indebtedness is subordinated in all respects to Indebtedness of the Borrower, such Subsidiary or the Holding Company (as the case may be) to the Lenders and the Agent arising under the Loan Documents;
(m) Indebtedness under (i) the UK Facility and (ii) the Canadian Working Capital Facility;
(n) Indebtedness in respect of surety or other bonds issued in the ordinary course of business and not for speculative purposes;
(h) subject to the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest thereinliens permitted in SECTION 10.2(D) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debtbelow; and
(ko) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, any of its Subsidiaries or the Guarantors Holding Company incurred by such Person as a result of insurance premium financing entered into in connection with the purchase by such Person of policies of insurance required hereunder or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this AgreementSecurity Agreements.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (CRC Evans International Inc)
Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(d) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(e) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(f) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(g) subject to the provisions of §9, Indebtedness of the REIT, the Borrower, International Holdco, Global II Holdco, Global II International Holdco or any other Subsidiary of Borrower (other than a Subsidiary of Borrower which is a Guarantor or CVOP II an Unencumbered Property Subsidiary) in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes;; and
(h) subject to the provisions of §9, (i) Non-Recourse Indebtedness that is secured by Real Estate (other than the Unencumbered Pool Properties Assets or interest therein) and related assets;assets (and guaranties of Non-Recourse Exclusions with respect to such Indebtedness), and (ii) Secured Recourse Indebtedness (and guaranties of such Indebtedness), provided that no such Secured Recourse Indebtedness shall be secured by any Unencumbered Pool Asset or interest therein; and
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount Unsecured Indebtedness (and guaranties of such Secured Debt Indebtedness) (excluding in each case, other than Indebtedness of the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described type included in clause (af) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from REIT and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agentits Subsidiaries. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Unencumbered Pool Properties Assets or any interest therein or any direct or indirect ownership interest in the Borrower, any Subsidiary Guarantor or the Unencumbered Property Subsidiary owning such asset as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, and (ii) none of the BorrowerSubsidiaries of Borrower which directly or indirectly own or lease an Unencumbered Pool Asset (including, the Guarantors or their respective Subsidiaries without limitation, any Unencumbered Property Subsidiary) shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (including, without limitation, pursuant to any conditional or limited guaranty or indemnity agreement creating liability with respect to usual and customary exclusions from the non-recourse limitations governing the Non-Recourse Indebtedness of any Person, or otherwise) other than Indebtedness to the Lenders arising under the Loan Documentsdescribed in §§8.1(a), 8.1(b), 8.1(c), 8.1(d), 8.1(e), 8.1(f) or 8.1(i) and, solely with respect to which there is a Lien on any Equity InterestsInternational Holdco, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such PersonGlobal II Holdco and Global II International Holdco, 8.1(h) above (provided that (A) (1) Borrowersuch Indebtedness shall not be secured by an Unencumbered Pool Asset, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor asset related thereto or any Person having interest therein, nor any direct or indirect ownership interest of the Borrower, any Guarantor or any of their respective Subsidiaries in any such Subsidiary GuarantorUnencumbered Property Subsidiary), may and (iii) REIT shall not create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by (including, without limitation, pursuant to any conditional or limited guaranty or indemnity agreement creating liability with respect to usual and customary exclusions from the non-recourse limitations governing the Non-Recourse Indebtedness of any Person, or otherwise) other than Indebtedness described in §§8.1(a)-(g) and (i) above and, solely with respect to REIT providing unsecured guaranties of such Indebtedness, the Indebtedness described in §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreementabove.
Appears in 1 contract
Restrictions on Indebtedness. The Borrower Credit Parties will not, and will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ai) Indebtedness to the Lenders arising under any of the Loan DocumentsDocuments and Hedge Obligations to a Lender Hedge Provider;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(cii) current liabilities of the Borrower, the Guarantors Borrower or their respective its Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(diii) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(eiv) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(fv) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(gvi) subject Indebtedness incurred to the provisions of §9any other landowners, Indebtedness of the Borrower government or CVOP II in respect of Derivatives Contracts that are entered into quasi-government or entity or similar entity in the ordinary course of business in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and not for speculative purposessimilar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith;
(hvii) subject To the extent constituting Indebtedness, the redemption obligations set forth in the Partnership Agreement;
(viii) Indebtedness of the Borrower under carve-out guaranties and environmental indemnifications on first mortgage or other property related loans of its Subsidiaries that are otherwise permitted hereunder, provided the Borrower shall use commercially reasonably efforts to have any such guaranties or environmental indemnifications be provided by the REIT Guarantor before being provided by the Borrower;
(ix) Unsecured Debt (other than the Obligations) of the REIT Guarantor, Borrower and their Subsidiaries provided (i) the Borrower remains in compliance with covenants set forth in §9 and no payment of the Obligations is required under §3.2 after giving effect to such Unsecured Debt, and (ii) no such Indebtedness shall be incurred by a Pool Property Owner prior to the provisions of §9, Investment Grade Pricing Date;
(x) Non-Recourse Indebtedness that of a Subsidiary (but not any Pool Property Owner or parent thereof) of the Borrower which is secured only by Real Estate (other than the Pool Properties assets of such Subsidiary, with recourse to the Borrower or interest therein) the REIT Guarantor limited to customary carve-outs and related assets;environmental indemnifications, in each case in compliance with covenants set forth in §9; and
(ixi) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the REIT Guarantor or its Subsidiaries (so long as such Indebtedness is not incurred by any Pool Properties Property Owner or any interest therein or secured by any direct or indirect ownership interest Equity Interests thereof) in an aggregate amount not to exceed the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agentamount permitted under §9.6. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) 8.1 above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor Pool Property Owner as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, Indebtedness (provided that the foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Pool Property Owner) to incur Indebtedness described in §8.1(j) may, subject to which would be prohibited by the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, 8.1 subject to compliance with the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by financial covenants set forth in §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement9).
Appears in 1 contract
Restrictions on Indebtedness. The Borrower Borrowers will not, and will not permit any Guarantor or of their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors Borrowers or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(d) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §Section 7.8;
(e) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of DefaultDefault under Section 12.1(l);
(f) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and
(g) subject to the provisions of §Section 9, Indebtedness of the Borrower or CVOP II Borrowers in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes;
(h) subject to the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assets[Intentionally Omitted];
(i) subject [Intentionally Omitted];
(j) Indebtedness incurred to acquire furniture, fixtures or equipment to which a Borrower or a Subsidiary thereof is a party in the provisions ordinary course of §9, Secured Debt that is Recourse Indebtedness, provided that the business in an aggregate outstanding amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not to exceed fifteen percent (15.0%) of Gross Asset Value $12,000,000.00 at any time; time (an “FF&E Lease”), provided, however, that for one period (i) the term of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse any such Indebtedness may exceed fifteen percent (15.0%) but shall cannot exceed seventeen five (5) years, (ii) such Indebtedness shall amortize in a manner consistent with Borrowers’ current financings of this type, (iii) such Indebtedness cannot be reborrowed or refinanced and one(iv) such Indebtedness is subject to an Intercreditor Agreement, a subordination, non-half percent (17.5%) during disturbance and attornment agreement and such periodother documents or agreements reasonably requested by Administrative Agent;
(jk) subject Indebtedness (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) owed to any Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to Borrowers or any Subsidiary thereof, pursuant to reimbursement or indemnification obligations to such Person, in each case in the ordinary course of business or consistent with past practice or industry practices;
(l) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(m) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services or netting services, in each case incurred in the ordinary course of business;
(n) Indebtedness representing deferred compensation to employees, consultants or independent contractors of Borrowers (or, to the provisions of §9extent such work is done for Borrowers or their respective Subsidiaries, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower parent thereof) or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form thereof incurred in the ordinary course of credit support for such Unsecured Debtbusiness;
(o) Indebtedness consisting of the financing of insurance premiums in the ordinary course of business; and
(kp) unsecured Indebtedness obligations in respect of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agentcash management agreements. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(hSections 8.1(i) and (ior 8.1(j) above shall have any of the Pool Properties Collateral Properties, Villa Units, any other Collateral or any interest therein or any direct or indirect ownership interest in any Borrower or any Subsidiary Guarantor thereof as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of only the BorrowerBorrower owning such Real Estate or other applicable asset, the Guarantors or their respective Subsidiaries if such Indebtedness is secured as expressly permitted by Section 8.2, shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to to, any Indebtedness (including pursuant to any conditional or limited guaranty or indemnity agreement creating liability with respect to usual and customary exclusions from the non-recourse limitations governing the Non-Recourse Indebtedness of any Person, or otherwise) other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right described in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary GuarantorSections 8.1(a), may create8.1(c), incur8.1(d), assume8.1(e), guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i8.1(f) and with respect to which there is a Lien on any Equity Interests8.1(k) through 8.1(p), right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) in no Subsidiary of the event shall any Borrower which directly guarantee, or indirectly owns a Pool Property shall createotherwise be contingently liable for, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness or other than Indebtedness to the Lenders arising under the Loan Documents, provided obligation of any Person that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreementis not a Borrower.
Appears in 1 contract
Samples: Senior Secured Credit Agreement (Griffin-American Healthcare REIT III, Inc.)
Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor or their respective Subsidiaries to, createCreate, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Agent and the Lenders (and their respective Affiliates) arising under any of the Loan Documents;
(b) Indebtedness to arising under the Lender Hedge Providers in respect of any Hedge ObligationsRevolving Credit Agreement;
(c) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries Borrower incurred in the ordinary course of business but not incurred other than through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(d) Indebtedness of Whitestone OP (other than relating to the Project) in an aggregate amount not in excess of $500,000 in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.88.9 (but including, in any event, any Indebtedness secured by an M&M Lien);
(e) Indebtedness of Whitestone OP (other than relating to the Project) in an aggregate amount not in excess of $1,000,000 in respect of judgments only to or awards that have been in force for less than the extentapplicable period for taking an appeal so long as execution is not levied thereunder or in respect of which, at the time, a good faith appeal or proceeding for the period review is being prosecuted, and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(f) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(g) subject Secured term loan Indebtedness of Whitestone OP and its Subsidiaries (but not Pima Norte) disclosed on Schedule 9.1(f) or incurred after the Closing Date, provided that: (i) such Indebtedness is Without Recourse to the provisions Borrower or the Trust and is Without Recourse to any of §9, Indebtedness the respective assets of any of the Borrower or CVOP II the Trust other than to the specific Real Estate Asset or Assets acquired, refinanced or rehabilitated with the proceeds of such Indebtedness, and (ii) at the time any such Indebtedness is incurred and after giving effect thereto, there exists no Default or Event of Default hereunder;
(h) contingent liabilities of Whitestone OP disclosed in the financial statements referred to in §7.4 or on Schedule 9.1(g) hereto, and such other contingent liabilities of the Borrower having a combined aggregate potential liability of not more than $1,000,000 at any time;
(i) Indebtedness of Whitestone OP for the purchase price of capital assets (other than Real Estate Assets but including Indebtedness in respect of Derivatives Contracts that are entered into Capitalized Leases) incurred in the ordinary course of business and not for speculative purposes;
(h) subject to the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtednessbusiness, provided that the aggregate principal amount of such Secured Debt Indebtedness permitted by this clause (excluding the Obligations and the Hedge Obligationsi) shall not exceed fifteen percent (15.0%) of Gross Asset Value $500,000 at any timetime outstanding; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;and
(j) subject Recourse Indebtedness of Whitestone OP incurred after the Closing Date (other than Indebtedness relating to or affecting the provisions of §9, Unsecured Debt which is pari passu Project) in connection with the Indebtedness described in clause (a) abovepurchase of or the construction of or renovation of improvements on any Real Estate Asset, provided that such Unsecured Debt described in (i) the aggregate principal amount of Indebtedness permitted by this §8.1(jclause (i) may have shall not exceed $40,000,000 at any of time outstanding, and (ii) at the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that time any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from is incurred and after the Mergergiving effect thereto, CVOP I that is a Guarantor shall be subordinate to the repayment there exists no Default or Event of the Obligations on terms reasonably acceptable to AgentDefault hereunder. Notwithstanding anything the foregoing, in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above no event shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors Trust or any of their respective Subsidiaries shall createincur or have outstanding (i) unhedged variable rate Indebtedness in excess of fifty percent (50%) of Consolidated Total Indebtedness, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4ii) any Subsidiary other revolving credit facility, whether secured or unsecured, or any unsecured Indebtedness for borrowed money. It is understood and agreed that the provisions of this §9.1 shall not apply to Indebtedness of any Partially-Owned Entity that is Without Recourse to the Borrower or from and after the MergerTrust, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) of their respective assets. The terms and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms provisions of this Agreement§9.1 are in addition to, and (B) not in limitation of, the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by covenants set forth in §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement10.
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Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor or their respective of its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders Banks and the Agent arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors Borrower or their respective Subsidiaries such Subsidiary incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(dc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8Section 8.8;
(ed) Indebtedness in respect of judgments only to or awards (a) that (i) have been in force for less than the extentapplicable period for taking an appeal so long as execution is not 39 40 levied thereunder, or (ii) in respect of which the Borrower or such Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review, and (b) the period and for an amount existence of which does not resulting in constitute an Event of DefaultDefault under Section 13.1;
(fe) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(f) Subordinated Debt or Replacement Subordinated Debt;
(g) subject Indebtedness secured by "purchase money security interests," as such term is defined in the Uniform Commercial Code as adopted in the State of California, in an aggregate principal amount at any time outstanding not exceeding an amount equal to (i) the provisions lesser of §9, (A) 25% of Borrower's Net Fixed Assets and (B) $50,000,000 minus (ii) the principal amount of all Indebtedness of the Borrower or CVOP II type described in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposesthis Section 9.1(g) then outstanding;
(h) subject to Indebtedness not otherwise permitted by this Section 9.1 existing on the provisions of §Closing Date and listed and described on Schedule 9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein. 1(h) and related assetshereto;
(i) subject Indebtedness with respect to the provisions mandatory redemption rights of §9, Secured Debt that is Recourse Indebtednessthe holders of Preferred Stock of the Borrower, provided that such rights do not become operative prior to the aggregate amount seventh anniversary of such Secured Debt (excluding the Obligations and Closing Date of the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such periodOriginal Credit Agreement;
(j) subject Indebtedness incurred to refinance existing Indebtedness, provided, that the principal amount thereof does not exceed the principal amount of the Indebtedness to be refinanced outstanding immediately prior to such refinancing and the terms and provisions of the new Indebtedness (including subordination provisions) are not otherwise more favorable to the provisions holder thereof (including without limitation by stating an earlier maturity) than those of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debtto be refinanced; and
(k) unsecured Indebtedness of owing by Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this AgreementBorrower.
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Restrictions on Indebtedness. The Borrower No Obligor will not, and will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries any Obligor incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(dc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §Section 7.8;
(ed) Indebtedness in respect of judgments only to or awards not in excess of $2,000,000.00 in the extent, aggregate that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the Obligor shall at the time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(fe) endorsements for collection, deposit or negotiation negotia tion and warranties of products or services, in each case incurred in the ordinary course of business;
(f) the Intercompany Loans;
(g) Indebtedness incurred for the construction of the new distribution and office center for the Obligors, the terms of which Indebtedness are approved by the Agent in its discretion, which approval shall not be unreasonably withheld; and
(g) subject to the provisions of §9, Indebtedness of the Borrower or CVOP II in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes;
(h) subject to the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following existing on the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness and listed and described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this AgreementSchedule 8.1 hereto.
Appears in 1 contract
Samples: Revolving Credit Agreement (Dollar Tree Stores Inc)
Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor or their its respective Subsidiaries or any of the Guarantors to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(dc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(ed) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of a Default;
(fe) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(gf) subject to the provisions of §9, Indebtedness of the Borrower or CVOP II in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes;
(h) subject to the provisions of §9, Non-Recourse Indebtedness that which is secured by Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse IndebtednessDebt, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) Recourse Indebtedness outstanding at any one time shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen seven and one-half percent (17.57.5%) during such periodof Consolidated Total Asset Value;
(jg) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Non-Recourse Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided Borrower that any such are not Guarantors;
(h) Non-Recourse Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is Borrower or a Guarantor shall be subordinate constituting purchase money indebtedness or incurred in connection with equipment financing, not to exceed $2,000,000.00 in the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, aggregate outstanding at any time;
(i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this AgreementIntentionally Omitted; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement.and
Appears in 1 contract
Restrictions on Indebtedness. The Borrower REIT and the Borrowers will not, and will not permit any Guarantor or of their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the BorrowerREIT, the Guarantors Borrowers or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(dc) Indebtedness (i) of the REIT, the Borrowers or their Subsidiaries in respect of taxes, assessments, assessments and governmental charges or levies and (ii) of the REIT, the Borrowers or their Subsidiaries in respect of claims for labor, materials and supplies supplies, in each case to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §Section 7.8;
(ed) Indebtedness of the REIT, the Borrowers or their Subsidiaries in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the period REIT and the Borrowers shall at the time in good faith be prosecuting an appeal or proceedings for an amount not resulting review and in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(fe) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of businessbusiness by the REIT, the Borrowers or their Subsidiaries;
(f) Non-recourse Indebtedness of the Borrowers or their Subsidiaries; andPROVIDED, that this Section 8.1(f) shall not be interpreted to permit any Indebtedness that would cause the REIT and its Subsidiaries to exceed the limits in Sections 9.4, 9.5 and 9.6;
(g) subject to the provisions of §9, Indebtedness of the Borrower REIT, the Borrowers or CVOP II their Subsidiaries in respect of Derivatives Contracts that are entered into reverse repurchase agreements having a term of not more than 180 days with respect to Investments described in the ordinary course of business and not for speculative purposesSection 8.3(d) or (e);
(h) subject Capitalized Leases and Indebtedness of the REIT, the Borrowers and their Subsidiaries secured by purchase money security interests on tangible personal property of the REIT, the Borrowers and their Subsidiaries; PROVIDED, that the amount of such Indebtedness shall not exceed the book value of such tangible personal property and in any event shall not exceed $10,000,000 in aggregate amount outstanding at any time; and PROVIDED, FURTHER, that this Section 8.1(h) shall not be interpreted to the provisions of §9, Non-Recourse permit any Indebtedness that is secured by Real Estate (other than would cause the Pool Properties or interest therein) Borrowers and related assetstheir Subsidiaries to exceed the limits in Sections 9.4, 9.5 and 9.6;
(i) subject to Indebtedness of the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations REIT and the Borrowers in respect of Qualified Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such periodAgreements;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured The Surviving Debt; and;
(k) unsecured Indebtedness of Subsidiaries each of BorrowerHeritage OP and NHHLP to each other in respect of a cross-indemnification agreement between Heritage OP and NHHLP covering losses that either may incur as a result of the cross-collateralization of Non-recourse Indebtedness issued by each -71- to Metropolitan Life Insurance Company, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary the REIT to each of BorrowerHeritage OP and NHHLP pursuant to separate guarantees by the REIT of the amounts owing under said cross-indemnification agreement; PROVIDED, CVOP II or, from and after that none of the Merger, CVOP I that is a Guarantor rights of Heritage OP or NHHLP under said cross-indemnification agreement or either of said guarantees shall be subordinate to pledged or assigned to, or made the repayment subject of a security interest for the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrarybenefit of, any third party, including without limitation Metropolitan Life Insurance Company or its affiliates, successors or assigns;
(l) Indebtedness (i) none of any Wholly Owned Subsidiary to an Obligor other than the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties REIT or any interest therein Acquisition Subsidiary or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect any other Subsidiary of a Borrower to any Indebtedness (an Obligor other than the REIT or Acquisition Subsidiary, PROVIDED that the Investment represented by such Indebtedness to the Lenders arising under the Loan Documentsis permitted by Section 8.3(1);
(m) with respect to which So long as there is more than one Investment Grade Debt Rating and the REIT and Borrowers are and, after giving effect to such Indebtedness as evidenced by a Lien on any Equity InterestsPRO FORMA Compliance Certificate, right to receive Distributions or similar right will remain in any Subsidiary or Unconsolidated Affiliate of such Personcompliance with all their covenants hereunder, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted unsecured and incurred under a medium term bond program reasonably approved by §8.1(hAdministrative Agent and;
(n) or (i) and with respect to additional Indebtedness which there is a Lien on in the aggregate does not exceed at any Equity Interests, right to receive Distributions or similar right time $10,000,000 in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreementprincipal amount outstanding.
Appears in 1 contract
Samples: Revolving Credit Agreement (Heritage Property Investment Trust Inc)
Restrictions on Indebtedness. The Borrower will not, and Property Parties will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders arising under any of the Loan DocumentsDocuments and Hedge Obligations to a Lender Hedge Provider;
(b) Indebtedness of the Credit Parties to the Lender Hedge Providers in respect of any other lender relating to any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries Property Parties incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(d) judgment not constituting an Event of Default;
(e) endorsements for collection, deposit or negotiation; and
(f) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(e) Indebtedness in respect of judgments only . In addition to the extentforegoing, for until the period REIT achieves a maximum Consolidated Leverage Ratio of 60% and for an amount not resulting in an Event the outstanding balance of Default;
(f) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and
(g) subject Loan is reduced to the provisions lesser of §9, Indebtedness of the Borrower or CVOP II in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes;
(h) subject to the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations Mortgaged Assets Mortgageability Amount and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none a maximum Mortgaged Assets Leverage Ratio of the Borrower60%, the Guarantors or their respective REIT, the Borrower and its Subsidiaries shall create, incur, assume, guarantee be prohibited from incurring any additional Indebtedness or be providing any recourse or remain liable, contingently or otherwise, with respect to guarantees of Indebtedness of any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreementkind.
Appears in 1 contract
Restrictions on Indebtedness. The Borrower and the Guarantors will not, and will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(d) Indebtedness in respect of (i) taxes, assessments, governmental charges or levies and (ii) claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.87.8 or §8.20, as applicable;
(e) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;[Intentionally Omitted.]
(f) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(g) subject to the provisions of §9, Indebtedness of the Borrower or CVOP II in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes;
(h) subject to the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse IndebtednessDebt, provided that (A) the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen forty percent (15.040%) of Gross Asset Value at any timeValue; provided, however, that for one period or more periods of up to four (4) full consecutive fiscal quarters immediately following the date on each Material Acquisition of which the Merger is consummated and one Borrower has given Agent written notice (1with such four (4) partial consecutive fiscal quarter period to include the quarter in which the Merger such Material Acquisition is consummated), if applicablesuch ratio of Secured Debt to Gross Asset Value (expressed as a percentage) may exceed forty percent (40%) but shall not exceed forty-five percent (45%) during such period; and (B) in addition to the limitation set forth in the immediately preceding clause (A), (1) the aggregate amount of Secured Debt that is Recourse Indebtedness (excluding the Obligations and the Hedge ObligationsObligations to the extent ever secured hereunder) that is Recourse Indebtedness may shall not exceed fifteen percent (15.015%) but of Gross Asset Value, and (2) the aggregate amount of Capitalized Lease Obligations of Parent Company and its Subsidiaries with respect to any of the Unencumbered Asset Pool Properties shall not exceed seventeen and one-half percent (17.5%) during such period$45,000,000.00;
(h) [Intentionally Omitted.]
(i) [Intentionally Omitted.]
(j) [Intentionally Omitted]; and
(k) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties REIT or any interest therein Subsidiaries of the REIT that are not Initial Subsidiary Guarantors or Additional Subsidiary Guarantors (or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing baseowners of such Subsidiaries), asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of the Initial Subsidiary Guarantors and the Additional Subsidiary Guarantors may incur Unsecured Debt only if it has the Unencumbered Asset Pool Properties as a Subsidiary of Borrower, CVOP II or, from and after borrowing base or the Merger, CVOP I that is documents evidencing same contain a Guarantor shall be subordinate covenant substantially similar to the repayment Section 4.12 of the Obligations on terms reasonably acceptable to AgentIndenture. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i8.1(g) above shall have any of the Unencumbered Asset Pool Properties or any interest therein or equipment related thereto (other than Capitalized Lease Obligations not otherwise prohibited by §8.1(g) above) or any direct or indirect ownership interest in any a Subsidiary Guarantor that either (A) owns, directly or indirectly, an Unencumbered Asset Pool Property, or (B) directly or indirectly provides services to an Unencumbered Asset Pool Property as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, Indebtedness (provided that the foregoing shall not preclude Subsidiaries of the Parent Company (other than a Subsidiary Guarantor that either (A) owns, directly or indirectly, an Unencumbered Asset Pool Property, or (B) that directly or indirectly provides services to an Unencumbered Asset Pool Property (or any direct or indirect owners of such Subsidiaries)) to incur Non-Recourse Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any §8.1 or recourse to the general credit of the Pool Properties as an unsecured borrowing baseParent Company or the Borrower), asset pool or similar form of credit support for such Unsecured Debt, and (ii) none of the Borrowerneither REIT nor any Subsidiary Guarantor that (A) either owns, the Guarantors directly or their respective Subsidiaries indirectly, an Unencumbered Asset Pool Property, or (B) that directly or indirectly provides services to an Unencumbered Asset Pool Property, shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (including, without limitation, pursuant to any conditional or limited guaranty or indemnity agreement creating liability with respect to usual and customary exclusions from the non-recourse limitations governing the Non-Recourse Indebtedness of any Person, or otherwise) other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right described in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower§§8.1(a)-(d), (2f) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4k) any Subsidiary of the Borrower or from above and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted Capitalized Lease Obligations not otherwise prohibited by §8.1(h8.1(g) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreementabove.
Appears in 1 contract
Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor or their its respective Subsidiaries or any of the Guarantors to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(dc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(ed) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of a Default;
(fe) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(gf) subject to the provisions of §9, Indebtedness of the Borrower or CVOP II in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes;
(h) subject to the provisions of §9, Non-Recourse Indebtedness that which is secured by Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse IndebtednessDebt, provided that the aggregate amount of such Recourse Indebtedness which is Secured Debt outstanding at any one time (excluding not including the Obligations and Loans or Letter of Credit Liabilities to the Hedge Obligationsextent the same shall at any time constitute Recourse Indebtedness which is Secured Debt) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen seven and one-half percent (17.57.5%) during of Consolidated Total Asset Value (provided that the aggregate amount of such periodRecourse Indebtedness which is Secured Debt outstanding at any one time may exceed such limit by an additional two and one-half percent (2.5%) of Consolidated Total Asset Value (for a total of ten percent (10.0%) of Consolidated Total Asset Value) so long as any such excess consists solely of Equity Pledge Secured Debt permitted by §8.1(i) below);
(g) Non-Recourse Indebtedness of Subsidiaries of Parent (other than any Subsidiaries of Borrower that directly or indirectly own or lease a Subject Property);
(h) Non-Recourse Indebtedness of Borrower or a Guarantor constituting purchase money indebtedness or incurred in connection with equipment financing, not to exceed $4,000,000.00 in the aggregate outstanding at any time;
(i) Equity Pledge Secured Debt of Parent or a Subsidiary of Parent, provided that the aggregate amount of Consolidated Total Equity Pledge Secured Debt (not including the Loans or Letter of Credit Liabilities to the extent the same shall at any time constitute Equity Pledge Secured Debt) outstanding at any one time shall not exceed ten percent (10.0%) of Consolidated Total Asset Value;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that provided, that, unless the Borrower and/or Parent has obtained an Investment Grade Rating, the aggregate amount of such Unsecured Debt described in this §8.1(joutstanding at any one time shall not exceed twelve and one-half percent (12.5%) may have any of Consolidated Total Asset Value; provided, further, that if after obtaining an Investment Grade Rating, Borrower and/or Parent shall lose such Investment Grade Rating, the foregoing limitation shall be reinstated one hundred twenty (120) days after Borrower and/or Parent receive notification of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form loss of credit support for such Unsecured DebtInvestment Grade Rating; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement.
Appears in 1 contract
Restrictions on Indebtedness. The Borrower Company will not, and will not permit any Guarantor or their respective Subsidiaries Subsidiary to, create, incur, assume, guarantee guarantee, or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:than the following ("Permitted Indebtedness"):
(a) Indebtedness to the Lenders arising under any of the Loan DocumentsInvestor;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge ObligationsThe Franklin Indebtedness;
(c) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries Current Liabilities incurred in the ordinary course of business but not incurred through (i) the borrowing of money, money or (ii) the obtaining of credit credit, except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and servicesservices in the ordinary course of business;
(d) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials materials, and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8Section 7.4 hereof;
(e) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the period Company shall at the time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(f) endorsements Endorsements for collection, deposit deposit, or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(g) subject Indebtedness incurred in connection with the acquisition, after the date hereof, of any real or personal property by the Company, provided that (i) the principal amount of such Indebtedness shall not exceed in any case 90% of the cost, to the provisions of §9Company, Indebtedness of the Borrower real or CVOP II in respect of Derivatives Contracts that are entered into in personal property so acquired and (ii) the ordinary course of business and aggregate annual principal payments on all such Indebtedness shall not for speculative purposes;exceed $15,000; or
(h) subject to the provisions Indebtedness under or in respect of §9, Non-Recourse Indebtedness that is secured by Real Estate (agreements or instruments other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt those listed in this Section 7.10 that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following are existing on the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (ilisted and described on Schedule 7.10(h) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreementhereto.
Appears in 1 contract
Samples: Securities Purchase Agreement (Bpi Packaging Technologies Inc)
Restrictions on Indebtedness. The Borrower Borrowers and Guarantors will not, and will not permit any Guarantor or of their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders and the Agent arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, Borrowers or any Subsidiary of the Guarantors or their respective Subsidiaries Borrowers incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(dc) Indebtedness in respect of taxes, assessments, governmental charges or levies levies, liabilities under employee benefit plans, including pension plans and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8Section 10.8;
(ed) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the period applicable Borrower or Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(fe) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(f) obligations under Capitalized Leases not exceeding $10,000,000 in aggregate amount at any time outstanding;
(g) subject to Indebtedness incurred in connection with the provisions acquisition after the date hereof of §9any real or personal property by any Borrower or any of its respective Subsidiaries, provided that the aggregate principal amount of such Indebtedness shall not exceed the aggregate amount of $3,500,000 at any time outstanding and in no case shall the principal amount of such Indebtedness exceed 100% of the Borrower cost to such Person of the real or CVOP II in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposespersonal property so acquired;
(h) subject other Indebtedness existing on the date hereof or incurred pursuant to credit facilities existing on the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) date hereof and related assetslisted and described on Schedule 11.1 hereto;
(i) subject Indebtedness of (i) any Domestic Subsidiary of a Borrower to the provisions of §9such Borrower, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount (ii) a Borrower to any Domestic Subsidiary of such Secured Debt Borrower and (excluding the Obligations and the Hedge Obligationsiii) shall not exceed fifteen percent (15.0%) any Domestic Subsidiary of Gross Asset Value at any time; provided, however, that for one period a Borrower to another Domestic Subsidiary of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such periodBorrower;
(j) subject to Indebtedness incurred in connection with the provisions refunding or refinancing of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) aboveon Schedule 11.1 hereto, provided to the extent that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; andaggregate principal amount thereof is not thereby increased;
(k) unsecured Indebtedness consisting of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate notes subordinated to the repayment payment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement and conditions satisfactory to the contrary, (i) none Lenders issued to employees of Xxxxxxx-Xxxxxxx or Holdings or members of the Indebtedness described Board of Directors of Holdings in §8.1(h) and (i) above shall have any partial payment of the Pool Properties purchase price of shares of Xxxxxxx-Xxxxxxx'x or Holdings' common stock repurchased from such employees or directors as permitted under Section 11.4 hereof in aggregate amount not to exceed $2,500,000 at any interest therein or time outstanding;
(l) Indebtedness in respect of the payments under clause (b) of the definition of Stay and Performance Payments;
(m) additional Indebtedness not in excess of $5,000,000 at any direct or indirect ownership interest in time outstanding;
(n) Indebtedness of Hunter to Holdings not to exceed $15,000,000 at any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtednesstime outstanding, provided that the same is either evidenced only by open accounts or, if evidenced by a note, such note is pledged to the Agent as collateral for the Obligations;
(o) Indebtedness not to exceed the principal amount of $400,000 at any time outstanding consisting of deferred purchase price payments described in §8.1(jSection 2(b)(ii) mayof the Asset Purchase Agreement, subject dated as of October 21, 1996, between NEC and Xxxxxx X. Xxxxxxx Co., Inc. (the "Garratt Purchase Price Payments");
(p) Senior Subordinated Debt (including Indebtedness of a Domestic Borrower pursuant to the Senior Subordinated Guaranty provided for in the Senior Subordinated Indenture) in aggregate principal amount not to exceed $150,000,000 at any time outstanding, provided that Senior Subordinated Debt may be increased to an aggregate amount of $225,000,000 if (i) such additional Senior Subordinated Debt is governed by the same terms of this Agreement, have any of as governs the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured DebtSenior Subordinated Debt incurred on the Closing Date, (ii) none such additional Senior Subordinated Debt meets the debt incurrence test contained in the Senior Subordinated Indenture, (iii) Xxxxxxx-Xxxxxxx has delivered to the Agent Compliance Certificates demonstrating, both immediately prior to and immediately after the incurrence of such additional Senior Subordinated Debt, compliance with the Borrowercovenants set forth in Section 12 of this Credit Agreement, (iv) no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto; and (v) if, after the incurrence of any Senior Subordinated Debt in excess of $150,000,000, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate ratio of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary Funded Debt of the Borrower or from and after its Subsidiaries to Adjusted EBITDA, calculated on a Pro Forma Basis for the Mergerperiod of four consecutive fiscal quarters most recently ended, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall createand its Subsidiaries exceeds 5.00:1.00, incurthe Agent consents to such Senior Subordinated Debt, assume, guarantee or such consent not to be or remain liable, contingently, with respect to any unreasonably withheld; and
(q) Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms consisting of this AgreementStay and Performance Payments.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Russell-Stanley Holdings Inc)
Restrictions on Indebtedness. The Borrower will not, and Loan Parties will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ai) (x) Indebtedness to the Lenders arising under any of the Loan Documents, (y) Hedge Obligations to a Lender Hedge Provider, and (z) Indebtedness to any counterparty other than a Lender Hedge Provider with respect to any Derivatives ContractsContract made in the ordinary course of business (and not for speculative purposes);
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(cii) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(diii) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(eiv) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(fv) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(vi) Indebtedness incurred to any other landowners, government or quasi- government or entity or similar entity in the ordinary course of business in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith; and
(gvii) (a) Secured Recourse Indebtedness of Parent Borrower, Parent Guarantor, or IR OpCo as and to the extent not prohibited (and subject to the provisions of limitations set forth) in §9, 9.6 and (b) Unsecured Recourse Indebtedness of the Borrower or CVOP II Loan Parties as and to the extent not prohibited (and subject to the limitations set forth) in §9.9; NYDOCS03/1107437.11107437.2
(viii) (a) the Indebtedness set forth on Schedule 8.1 hereto, and any Permitted Refinancing Indebtedness in respect of Derivatives Contracts any such Indebtedness, (b) Indebtedness (including Capitalized Leases) financing the acquisition or replacement of equipment and, limited as to each of the Subsidiary Borrowers, to $25,000.00 per fiscal year, and (c) intercompany Indebtedness of the Loan Parties outstanding from time to time; provided that are all such intercompany Indebtedness of any Loan Party owed to any Subsidiary of Parent Guarantor that is not a Loan Party shall be subordinated to the Obligations pursuant to an Intercompany Note;
(ix) Non-Recourse Indebtedness entered into in the ordinary course of business and not for speculative purposesof the Loan Parties (other than a Subsidiary Borrower) (including, without limitation, any Indebtedness referred to in the proviso to the definition of Secured Recourse Indebtedness);
(hx) [Reserved];
(xi) Recourse Indebtedness consisting of the Non-Recourse Exclusions in respect of Non-Recourse Indebtedness permitted to be incurred pursuant to §8.2(ix);
(xii) subject to the provisions of §99.69.5, Non-Recourse Indebtedness that is secured by Real Estate of the Loan Parties (other than the Pool Properties or interest thereina Subsidiary Borrower) and related assets;
(i) subject in an amount not to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that exceed $100,000.00 in the aggregate amount of assumed in connection with an Investment not prohibited by this Agreement and any Permitted Refinancing Indebtedness incurred, issued or otherwise obtained to Refinance (in whole or in part) such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectivelyIndebtedness; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrarythat, (iA) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for immediately after giving effect to such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms no Event of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool Default exists or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors is continuing or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreementwould result therefrom, and (B) such Indebtedness is and remains solely the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary obligation of the Borrower which directly Person and/or such Person’s subsidiaries that are acquired and such Indebtedness was not incurred in anticipation of such Investment;
(a) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letters of credit, warehouse receipt or indirectly owns a Pool Property shall createsimilar facilities entered into in the ordinary course of business (including in respect of workers’ compensation claims, incurhealth, assumedisability or other employee benefits or property, guarantee casualty or be liability insurance or remain liable, contingently, self-insurance or other Indebtedness with respect to any reimbursement-type obligations regarding workers’ compensation claims) and (b) Indebtedness other than Indebtedness represented by letters of credit, to the Lenders extent such letters of credit support Indebtedness otherwise permitted under this §8.1(xiii);
(xiv) Indebtedness arising under the Loan Documentsfrom agreements providing for deferred compensation, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted indemnification, adjustments of purchase price (including “earnouts”) or similar obligations, in each case entered into in connection with any Investments not prohibited by §8.1(j) subject to the terms of this Agreement;
(xv) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations incurred in the ordinary course of business and not in connection with the borrowing of money;
(xvi) Indebtedness consisting of obligations to pay insurance premiums arising in the ordinary course of business and not in connection with the borrowing of money;
(xvii) Indebtedness representing deferred compensation to employees, consultants or independent contractors of, Parent Guarantor and its Subsidiaries incurred in the ordinary course of business or in connection with any Investments not prohibited by this Agreement;
(xviii) obligations, under cash management agreements, cash management services and other Indebtedness in respect of netting services, automatic clearing house arrangements, employees’ credit or purchase cards, overdraft protections and similar arrangements in each case incurred in the ordinary course of business;
(xix) Indebtedness comprising take or pay obligations contained in supply agreements entered into the ordinary course of business; and NYDOCS03/1107437.11107437.2
(xx) all customary premiums (if any), interest (including post-petition and capitalized interest), fees, expenses, charges and additional or contingent interest on obligations described in each of §8.1(i) through §8.1(xix) above.
Appears in 1 contract
Samples: Term Loan Agreement (Independence Realty Trust, Inc.)
Restrictions on Indebtedness. The Each Borrower will shall not, and will shall not suffer or permit any Guarantor or their respective of its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders arising under any of the Loan DocumentsObligations;
(b) Indebtedness to having an aggregate principal balance of less than $1,500,000, incurred in the Lender Hedge Providers in respect ordinary course of any Hedge Obligationsbusiness;
(c) Indebtedness in respect to mortgage warehouse lines of credit and mortgage loan repurchase agreements on terms and conditions substantially consistent with the terms and conditions hereof, including, without limitation, that Approved Investors shall have entered into unconditional purchase commitments with respect to the underlying mortgage loans;
(d) Indebtedness existing on the date of this Agreement and listed and described in Section 7.14.1 of the Disclosure Schedule;
(e) current liabilities of the Borrower, the Guarantors Borrowers or their respective Subsidiaries incurred in the ordinary course of business business, but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(df) endorsements of negotiable instruments for collection in the ordinary course of business;
(g) secured purchase money debt or capitalized lease obligations incurred in the ordinary course of business;
(h) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor therefore shall not no at the time be required to be made in accordance with the provisions of §7.8Section 7.8 hereof;
(ei) Indebtedness secured by real property acquired upon foreclosure of Mortgages which, either (x) is so secured at the time of such acquisition, or (y) is directly related to such real property, not in excess of the fair market value thereof, and reasonably expected by the Borrowers or their respective Subsidiaries to be recovered from the sale or other disposition of the subject real property;
(j) Permitted Intercompany Subordinated Debt not exceeding $1,500,000 in the aggregate;
(k) Indebtedness (exclusive of the Indebtedness referred to in clause (j) above) incurred to finance no greater than 100% of the purchase or leasing of equipment, in the ordinary course of business;
(l) Indebtedness to Xxxxxx Xxx, Xxxxxxx Mac, Xxxxxx Xxx, FHA or other parties with whom the Borrowers and their respsective Subsidiaries originate, sell, repurchase or service Mortgage Loans (including Indebtedness under the ASAP, ASAP Plus and ASAP POC programs), to the extent directly relating to or arising out of such origination, sale, repurchase, or servicing in the ordinary course of business consistent with past practices; and
(m) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for the period and for taking an amount appeal so long as execution is not resulting in an Event of Default;
(f) endorsements for collection, deposit levied thereunder or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and
(g) subject to the provisions of §9, Indebtedness of the Borrower or CVOP II in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes;
(h) subject to the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated Borrowers shall at the time in good faith be prosecuting an appeal or proceedings for review and one (1) partial fiscal quarter period to include the quarter in respect of which the Merger is consummated, if applicable, the amount a stay of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above execution shall have any of the Pool Properties been obtained pending such appeal or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreementreview.
Appears in 1 contract
Samples: Warehousing Credit and Security Agreement (Centerline Holding Co)
Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor or their respective its Subsidiaries to, create, incur, assume, 37 39 guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders Banks and the Agent arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors or their respective Borrower and its Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(dc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §Section 7.8;
(ed) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the period Borrower or its Subsidiaries shall at the time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(fe) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(f) Subordinated Debt;
(g) subject to the provisions obligations under Capitalized Leases not exceeding $100,000 in aggregate amount at any time outstanding or operating leases of §9houses, Indebtedness of the Borrower or CVOP II in respect of Derivatives Contracts that are apartments and condominiums entered into in the ordinary normal course of business and not for speculative purposesbusiness;
(h) subject to purchase money Indebtedness incurred in connection with the provisions acquisition after the date hereof of §9, Non-Recourse Indebtedness that is secured any real or personal property by Real Estate (other than the Pool Properties Borrower or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtednessits Subsidiaries, provided that the aggregate principal amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement.its
Appears in 1 contract
Samples: Revolving Credit Agreement (Bridgestreet Accommodations Inc)
Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors Guarantor or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(d) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(e) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(f) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and
(g) subject to the provisions of §9, Indebtedness of the REIT and Borrower or CVOP II in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes;
(h) subject to the provisions of §9, Non-Recourse Indebtedness Secured Debt that is secured by Real Estate Recourse Indebtedness, provided that the aggregate amount of such Indebtedness shall not exceed twenty percent (other than the Pool Properties or interest therein20.0%) of Gross Asset Value to and related assetsincluding May , 2015, and fifteen percent (15.0%) at any time thereafter;
(i) subject to the provisions of §9, Secured Debt that is Recourse IndebtednessDebt, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen thirty five percent (15.035.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured DebtValue; and
(kj) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I Borrower to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I Borrower that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h8.1(g), (h) and (i) above shall have any of the Unencumbered Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iiiz) no Subsidiary of the Borrower which directly or indirectly owns a an Unencumbered Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Carter Validus Mission Critical REIT, Inc.)
Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(d) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(e) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(f) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and
(g) subject to the provisions of §9, Indebtedness of the Borrower or CVOP II in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes;
(h) subject to the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than Indebtedness. Notwithstanding the Pool Properties foregoing or interest therein) and related assets;
anything else in this Agreement to the contrary, (i) subject to the provisions none of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a§8.1(g) above, provided that such Unsecured Debt described in this §8.1(j) may above shall have any of the Pool Properties Borrowing Base Assets or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that (ii) none of the Subsidiary Guarantors shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (including, without limitation, pursuant to any conditional or limited guaranty or indemnity agreement creating liability with respect to Non-Recourse Exclusions), other than Indebtedness described in §8.1(j8.1(a), 8.1(b), 8.1(c), 8.1(d) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt8.1(e) and 8.1(f), (iiiii) none of the Borrower, the Guarantors or any of their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Recourse Indebtedness (other than Indebtedness to excluding the Obligations but specifically including Senior Participations) without the prior written approval of the Agent and the Required Lenders, which approval may be granted or withheld in their sole and absolute discretion (the Agent and the Required Lenders arising under hereby approve the Loan Documents) with respect to which there is a Lien Senior Participations listed on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP ISchedule 8.1 hereto), and (4iv) any Subsidiary none of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor the Guarantors or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may of their Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted secured by §8.1(h) Equity Interests or rights to Distributions (i) and with respect to which there is a Lien on any Equity Interestsso-called “mezzanine financing”), right to receive Distributions structurally subordinated Indebtedness or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreementsecond priority Liens.
Appears in 1 contract
Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor or their respective of its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders Banks arising under any of the Loan Documents, and Indebtedness and obligations in respect of the Interest Rate Contract required pursuant to ss.7.13;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors Borrower or their respective its Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(dc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8ss.7.7;
(ed) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the period Borrower shall at the time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(fe) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(f) Permitted Indebtedness; and
(g) subject to the provisions of §9, Indebtedness of the Borrower or CVOP II in respect of Derivatives Contracts that are entered into in the ordinary course reverse repurchase agreements having a term of business and not for speculative purposes;
(h) subject to the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate (other more than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, 180 days with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right Investments described in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(hss.8.3(a)(iv) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreementv).
Appears in 1 contract
Samples: Revolving Credit Agreement (American Church Mortgage Co)
Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(d) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(e) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(f) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(g) subject to the provisions of §9, Indebtedness of the REIT, the Borrower, International Holdco, Global II Holdco, Global II International Holdco or any other Subsidiary of Borrower (other than a Subsidiary of Borrower which is a Guarantor or CVOP II an Unencumbered Property Subsidiary) in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes;; and
(h) subject to the provisions of §9, (i) Non-Recourse Indebtedness that is secured by Real Estate (other than the Unencumbered Pool Properties Assets or interest therein) and related assets;assets (and guaranties of Non-Recourse Exclusions with respect to such Indebtedness), and (ii) Secured Recourse Indebtedness (and guaranties of such Indebtedness), provided that no such Secured Recourse Indebtedness shall be secured by any Unencumbered Pool Asset or interest therein; and
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount Unsecured Indebtedness (and guaranties of such Secured Debt Indebtedness) (excluding in each case, other than Indebtedness of the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described type included in clause (af) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from REIT and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agentits Subsidiaries. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Unencumbered Pool Properties Assets or any interest therein or any direct or indirect ownership interest in the Borrower, any Subsidiary Guarantor or the Unencumbered Property Subsidiary owning such asset as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, and (ii) none of the BorrowerSubsidiaries of Borrower which directly or indirectly own or lease an Unencumbered Pool Asset (including, the Guarantors or their respective Subsidiaries without limitation, any Unencumbered Property Subsidiary) shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (including, without limitation, pursuant to any conditional or limited guaranty or indemnity agreement creating liability with respect to usual and customary exclusions from the non recourse limitations governing the Non-Recourse Indebtedness of any Person, or otherwise) other than Indebtedness to the Lenders arising under the Loan Documentsdescribed in §§8.1(a), 8.1(b), 8.1(c), 8.1(d), 8.1(e), 8.1(f) or 8.1(i) and, solely with respect to which there is a Lien on any Equity InterestsInternational Holdco, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such PersonGlobal II Holdco and Global II International Holdco, 8.1(h) above (provided that (A) (1) Borrowersuch Indebtedness shall not be secured by an Unencumbered Pool Asset, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor asset related thereto or any Person having interest therein, nor any direct or indirect ownership interest of the Borrower, any Guarantor or any of their respective Subsidiaries in any such Subsidiary GuarantorUnencumbered Property Subsidiary), may and (iii) REIT shall not create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by (including, without limitation, pursuant to any conditional or limited guaranty or indemnity agreement creating liability with respect to usual and customary exclusions from the non recourse limitations governing the Non-Recourse Indebtedness of any Person, or otherwise) other than Indebtedness described in §§8.1(a)-(g) and (i) above and, solely with respect to REIT providing unsecured guaranties of such Indebtedness, the Indebtedness described in §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreementabove.
Appears in 1 contract
Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(d) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(e) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of a Default;
(f) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(g) subject to the provisions of §9, Indebtedness of the Borrower or CVOP II in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes;; and
(h) subject to the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties Borrowing Base Assets or interest therein) and related assets;; and
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, Indebtedness (provided that the aggregate amount of no such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agentsecured by any Borrowing Base Asset or interest therein). Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i§8.1(i) above shall have any of the Pool Properties Borrowing Base Assets or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Subsidiary Guarantors which directly or their respective Subsidiaries indirectly own or lease a Borrowing Base Asset shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (including, without limitation, pursuant to any conditional or limited guaranty or indemnity agreement creating liability with respect to usual and customary exclusions from the non recourse limitations governing the Non-Recourse Indebtedness of any Person, or otherwise) other than Indebtedness to the Lenders arising under the Loan Documentsdescribed in §§8.1(a), 8.1(b), 8.1(c), 8.1(d), 8.1(e) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrowerand 8.1(f), (2iii) CVOP II in no event shall the aggregate amount of variable rate Indebtedness (excluding the Obligations) of REIT and from its Subsidiaries that is not subject to a Derivatives Contract for the purpose of hedging the exposure of REIT and after its Subsidiaries to fluctuations in interest rates exceed an amount equal to twenty percent (20%) of the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, Consolidated Total Indebtedness and (4iv) in no event shall REIT and its Subsidiaries incur any Subsidiary Indebtedness consisting of the Borrower completion or from and after the Merger, of CVOP I other guarantees (other than any such Subsidiary guarantees of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantorthe Obligations), may createwhether incurred directly, indirectly, or otherwise; provided, however, that if Consolidated Tangible Net Worth is equal to or greater than $300,000,000.00, then REIT and its Subsidiaries shall be permitted to incur, assumedirectly, guarantee or be or remain liableindirectly, contingently or otherwise, with respect Indebtedness consisting of completion or other guarantees in an amount not to any Indebtedness which is permitted by §8.1(hexceed ten percent (10%) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to Consolidated Total Assets (not including guarantees of the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this AgreementObligations).
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (American Realty Capital Healthcare Trust II, Inc.)
Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor or their respective of its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwiseother wise, with respect to any Indebtedness other than:
(a1) Indebtedness to the Lenders Lender arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c2) current liabilities of the Borrower, the Guarantors Borrower or their respective its Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(d3) Indebtedness arising on account of short term (less than 90 days) borrowing from affiliates of the Borrower;
(4) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8Section 6.8;
(e5) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the period Borrower shall at the time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(f6) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and
(g7) subject Indebtedness existing on the date of this Agreement and listed and described on SCHEDULE 7.1 hereto.
(8) Other Indebtedness not to the provisions of §9, Indebtedness of the Borrower or CVOP II in respect of Derivatives Contracts that are entered into exceed One Million Dollars ($1,000,000.00) in the ordinary course of business and not for speculative purposes;
(h) subject to the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreementtime outstanding.
Appears in 1 contract
Samples: Line of Credit Agreement (Toymax International Inc)
Restrictions on Indebtedness. The Borrower will not, and Borrowers will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness of Borrowers to the Lenders Banks arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current Current liabilities of the Borrower, the Guarantors or their respective Subsidiaries Borrowers incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(dc) Indebtedness of Borrowers in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(ed) Indebtedness of Borrowers in respect of judgments only to or awards the extent, for the period and for an amount existence of which does not resulting in create an Event of Default;
(fe) endorsements Endorsements by Borrowers for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(f) Non-Recourse Indebtedness of the Borrowers;
(g) subject Indebtedness of Borrowers with respect to the provisions of Interest Rate Contract acquired pursuant to §9, Indebtedness of the Borrower or CVOP II in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes7.13;
(h) subject Indebtedness of the Trust described in Schedule 8.1 hereto and any refinancing of such debt up to the provisions amount of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assets;original debt being refinanced; and
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest Trust in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I amount not to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreementexceed $50,000,000.
Appears in 1 contract
Samples: Loan Agreement (Meruelo Richard)
Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor or their respective of its Subsidiaries to, create, incur, assume, guarantee or be become or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(ci) current liabilities and reserves of the Borrower, the Guarantors Borrower or their respective Subsidiaries such Subsidiary incurred in the ordinary course of business but not incurred through (ix) the borrowing of money, or (iiy) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and servicesservices or (ii) balance sheet liabilities with respect to pension, retirement or other employee benefit plans incurred in connection with the operation of the Borrower’s or such Subsidiary’s business;
(dc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.86.8 hereof;
(ed) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the period Borrower or such Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(fe) endorsements for collection, deposit or negotiation negotiation, self insurance obligations and warranties of products or services, in each case incurred in the ordinary course of business; and;
(f) Indebtedness in respect of letters of credit and bankers’ acceptances issued in the ordinary course of business;
(g) subject to the provisions of §9, Indebtedness of the Borrower or CVOP II any Subsidiary (other than any Domestic Subsidiary) in respect of Derivatives Swap Contracts; provided that such Swap Contracts that are (or were) entered into by the Borrower or such Subsidiary for the purpose of mitigating risks associated with fluctuations in the ordinary course of business interest rates, commodity prices or foreign exchange rates and not for speculative purposes;
(h) subject to Indebtedness existing on the provisions of §9, Non-Recourse Closing Date and listed and described on Schedule 7.1 hereto or any refinancing thereof on substantially similar terms as the Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assetsbeing refinanced;
(i) subject Subordinated Debt;
(j) obligations under Capitalized Leases;
(k) Indebtedness in respect of intercompany loans, guaranties and, so long as no Default or Event of Default shall have occurred and be continuing at the time such Indebtedness is incurred, other Investments and contingent obligations to make Investments, (i) from the Borrower to any of its Subsidiaries or of any of its Subsidiaries’ obligations, (ii) between Subsidiaries of the Borrower or of any of the Borrower’s Subsidiaries’ obligations, or (iii) from any Subsidiary of the Borrower to the provisions Borrower or of any of the Borrower’s obligations;
(l) Indebtedness incurred in connection with the acquisition after the Closing Date of any real or personal property by the Borrower or any Subsidiary of the Borrower as contemplated by §9, Secured Debt that is Recourse Indebtedness, 7.2(ix) hereof;
(m) Indebtedness secured by a lien on Real Estate of the Borrower or its Subsidiaries; provided that the aggregate amount of Indebtedness permitted pursuant to this §7.1(m) shall not, at any time, exceed the fair market value of the Real Estate securing such Secured Debt Indebtedness;
(excluding n) other Indebtedness of the Obligations Borrower, provided that immediately after such incurrence of Indebtedness, and after giving effect thereto on a pro forma basis, no Default or Event of Default shall then exist;
(o) other Indebtedness of the Hedge ObligationsBorrower’s Subsidiaries (whether or not such Subsidiaries are Guarantors), provided that immediately after such incurrence of Indebtedness, and after giving effect thereto on a pro forma basis, no Default or Event of Default shall then exist, and provided, further, that the aggregate amount of such Indebtedness (without duplication) of the Domestic Subsidiaries of the Borrower permitted under this clause (o) shall not exceed fifteen percent 15% of the Stockholders’ Equity of the Borrower at the time such Indebtedness is incurred;
(15.0%p) Indebtedness consisting of Gross Asset Value Investments permitted under §7.3(m) hereof;
(q) Indebtedness payable at the election of the Borrower by the issuance of the Borrower’s Capital Stock;
(r) Indebtedness of any Person that becomes a Subsidiary of the Borrower after the date hereof in accordance with the terms of §7.6 hereof, which Indebtedness is existing at the time such Person becomes a Subsidiary of the Borrower (other than Indebtedness incurred in contemplation of such Person’s becoming a Subsidiary of the Borrower);
(s) Indebtedness of the Borrower and its Subsidiaries in respect of Securitization Transactions; provided that, the aggregate amount of all such Indebtedness shall not exceed $300,000,000 outstanding at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(kt) unsecured Indebtedness of Subsidiaries that are Guarantors under any guaranties of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such other Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Staples Inc)
Restrictions on Indebtedness. The Borrower Parent and each of the Borrowers will not, and the Parent will not permit any Guarantor or their respective of its other Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders Banks and the Agent arising under any of the Loan Documents;
(b) Indebtedness to of the Lender Hedge Providers Borrowers or the Parent or their Subsidiaries in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(dc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8Section 8.8;
(ed) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which such Person shall at the period time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(fe) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(f) Indebtedness existing on Closing Date of this Agreement and listed and described on Schedule 9.1 hereto;
(g) Indebtedness incurred after the date hereof in connection with the acquisition or construction (and within 120 days of such acquisition or construction) of any real or personal property by the Parent, the Borrowers or any other Subsidiary of the Parent, Indebtedness assumed in connection with any acquisition (whether of assets or stock) of a business by any of such Persons, and Capitalized Leases, provided that the aggregate principal amount of all such Indebtedness under this clause (g) shall not exceed $50,000,000 at any time;
(h) Indebtedness of a wholly-owned Subsidiary of the Parent or a Borrower owing to the Parent or such Borrower, provided that such Indebtedness is evidenced by an intercompany note that shall be subject to the provisions of §9, Indebtedness a first priority pledge in favor of the Borrower Agent, for the benefit of the Banks and the Agent;
(i) contingent obligations arising in connection with (i) surety, performance or CVOP II in respect of Derivatives Contracts that are entered into other similar bonds obtained in the ordinary course of business business, consistent with past practices, and not for speculative purposes;
(hii) subject to the provisions standby letters of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount credit issued in lieu of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such periodbonds;
(j) subject Indebtedness in respect of the Senior Notes and the Additional Senior Notes in an aggregate principal amount not to exceed $210,000,000;
(k) Indebtedness of the Parent or either of the US Borrowers with respect to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described SWATH Vessel in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debtaggregate principal amount not to exceed $10,000,000; and
(kl) additional unsecured subordinated Indebtedness of Subsidiaries of Borrower, CVOP II or, from in an aggregate principal amount and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contraryand conditions (including, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwisewithout limitation, with respect to any Indebtedness (other than Indebtedness tenor, interest rate, and terms of the subordination provisions relating thereto) acceptable to the Lenders arising under Agent and the Loan Documents) with respect to which there is a Lien on any Equity InterestsMajority Banks, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreementtheir sole discretion.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Trico Marine Services Inc)
Restrictions on Indebtedness. The Borrower will not, and will ---------------------------- not permit any Guarantor or their respective of its Restricted Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders Banks, the Issuing Bank and the Agent arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors Borrower or their respective Subsidiaries such Restricted Subsidiary incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(dc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8ss.8.8;
(ed) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the period Borrower or such Restricted Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(fe) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(f) Indebtedness in respect of the CSX Remaining Debt, provided that the aggregate principal amount of such Indebtedness shall not exceed $8,922,105;
(g) subject to the provisions of §9, Indebtedness of the Borrower or CVOP II any of its Restricted Subsidiaries to the Borrower or any of the other Restricted Subsidiaries consisting of rights of reimbursement, contribution, subrogation and the like in connection with the joint and several obligations of the Restricted Subsidiaries under the Loan Documents;
(h) Indebtedness incurred or assumed in connection with the acquisition after the date hereof of any real or personal property by the Borrower or such Restricted Subsidiary (including Indebtedness in respect of Derivatives Contracts Capitalized Leases), provided that are entered into the aggregate principal -------- amount of such Indebtedness of the Borrower and its Restricted Subsidiaries shall not exceed the aggregate amount of $15,000,000 at any one time;
(i) Indebtedness existing on the date hereof and listed and described on Schedule 9.1 hereto;
(j) Indebtedness of the Borrower to any of the Guarantors or any of the Guarantors to the Borrower or any of the other Guarantors;
(k) Indebtedness of the Borrower to any of the Banks with respect to interest rate protection arrangements;
(l) Indebtedness in respect of performance, surety, statutory, insurance, appeal or similar bonds obtained in the ordinary course of business and not for speculative purposesbusiness;
(hm) subject to Indebtedness of the provisions Borrower and its Restricted Subsidiaries in respect of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assetsoperating leases;
(in) subject to Indebtedness in respect of the provisions of §9, Secured Debt that is Recourse IndebtednessBridge Rehabilitation Project, provided that the aggregate principal amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) Indebtedness shall not exceed fifteen percent $900,000;
(15.0%o) Indebtedness under the Willamette Valley Note not to exceed $400,000 in principal amount outstanding at any time;
(p) Indebtedness of Gross Asset Value the Borrower, IMR and WPR in respect of their guaranty of the obligations outstanding on or before September 30, 1998 of Leasing under the Apus Railcar Lease;
(q) Indebtedness of the Borrower or any of its Restricted Subsidiaries in respect of guaranties of obligations in connection with Permitted Acquisitions and other Investments permitted by ss.9.3(i), (j) and (m) or the operation of any of its Restricted Subsidiaries (in each case, to the extent the underlying Indebtedness with respect thereto is otherwise permitted under this ss.9.1), not to exceed $10,000,000 in aggregate amount at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(kr) unsecured other Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after not included in the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms foregoing provisions of this Agreement, have ss.9.1 not to exceed $1,000,000 in the aggregate at any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreementtime outstanding.
Appears in 1 contract
Restrictions on Indebtedness. The Borrower will notNone of the Borrowers shall become or be a guarantor or surety of, and will not permit any Guarantor or their respective Subsidiaries to, otherwise create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness, or become or be responsible in any manner (whether by agreement to purchase any obligations, stock, assets, goods or services, or to supply or advance any funds, assets, goods or services or otherwise) with respect to any undertaking or Indebtedness of any other Person, or incur any Indebtedness other than:
(a) Indebtedness to the Lenders Banks and the Agent arising under any of this Agreement or the Loan Documents;
(b) Indebtedness Subject to the Lender Hedge Providers 8.9, Subordinated Debt in respect of any Hedge Obligationsan aggregate outstanding principal amount not to exceed $15,000,000;
(c) current liabilities Existing Indebtedness with respect to loans and capitalized leases listed on Schedule 8.1(c) hereto in an aggregate amount not to exceed $7,500,000, on the terms and conditions in effect as of the Borrowerdate hereof, together with any renewals, extensions or refinancings thereof on terms which are not materially different than those in effect as of the Guarantors or their respective Subsidiaries date hereof;
(d) Current liabilities incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(de) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.87.8 and Indebtedness of the Borrowers secured by liens of carriers, warehousemen, mechanics and materialmen permitted by 8.2;
(ef) Indebtedness in respect of judgments only to or awards which have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which any Borrower shall at the period time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review and in respect of which the Borrowers have maintained adequate reserves;
(fg) endorsements Indebtedness of any Borrower with respect to guaranty, suretyship or indemnification obligations in connection with such Borrower's performance of services for collection, deposit or negotiation and warranties of products or services, in each case incurred its respective customers in the ordinary course of its business; and;
(gh) subject [Intentionally omitted];
(i) Indebtedness of any Subsidiary owing to the provisions Parent;
(j) Intercompany Indebtedness among the Subsidiaries;
(k) Indebtedness in respect of §9a letter of credit issued by Allbank Bank in the face amount of $168,000; provided that if the Agent, in its sole and absolute discretion, at any time and for any reason so requests, the Borrowers shall promptly replace such letter of credit with a Letter of Credit issued by the Agent pursuant to the terms of this Credit Agreement;
(l) Indebtedness incurred in connection with the acquisition after the date hereof of any personal property by the Borrowers under any lease; provided that the aggregate outstanding principal amount of such Indebtedness of the Borrower Borrowers shall not exceed $10,000,000 at any time;
(m) Indebtedness incurred in connection with the acquisition by the Borrowers of real or CVOP II personal property, including Indebtedness in respect of Derivatives Contracts non-compete payments; provided that are entered into the aggregate outstanding principal amount of such Indebtedness of the Borrowers shall not exceed $15,000,000 at any time;
(n) Indebtedness in an aggregate amount not to exceed $10,501,284 payable to Clinton County, New York under and in accordance with the terms of the Clinton Lease;
(o) Indebtedness under fuel price swaps, fuel price caps, and fuel price collar or floor agreements, and similar agreements or arrangements designed to protect against or manage fluctuations in fuel prices with respect to fuel purchased in the ordinary course of business and not for speculative purposes;
(h) subject to of the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse IndebtednessBorrowers, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall agreements do not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable$500,000, the amount maturity of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall such agreements do not exceed seventeen six (6) months, the terms are consistent with past practices of the Borrowers, and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu agreements are entered into with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties Agent or any interest therein or any direct or indirect ownership interest in Bank and secured by the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured DebtCollateral; and
(kp) unsecured Indebtedness in respect of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate interest rate protection arrangements satisfactory to the repayment of Agent entered into with the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties Agent or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that Bank and secured by the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this AgreementCollateral.
Appears in 1 contract
Samples: Revolving Credit Agreement (Casella Waste Systems Inc)
Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors Guarantor or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(dc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.87.8 or §7.22;
(ed) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(fe) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and
(gf) subject to the provisions of §9, Indebtedness of the Borrower or CVOP II in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes;
(g) subject to the provisions of §9, Indebtedness in respect of Capitalized Leases and claims under environmental indemnities or with respect to Non-Recourse Exclusions not to exceed $15,000,000.00 (excluding environmental claims covered by insurance) in the aggregate at any one time;
(h) subject to the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest thereinMortgaged Properties) and related assets;
(i) subject to the provisions of §9, Secured Debt or Unsecured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt Indebtedness (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen ten percent (15.010%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured DebtValue; and
(kj) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I Borrower to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I Borrower that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i8.1(i) above shall have any of the Pool Mortgaged Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to (x) any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that Person or (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4y) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this AgreementDebt; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Mortgaged Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to permitted under clauses (b)-(g) of this §0.0.xx the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement.
Appears in 1 contract
Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders Banks arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries Borrower incurred in the ordinary course of business and relating to the Mortgaged Property but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and servicesservices relating to the Mortgaged Property;
(dc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies relating to the Mortgaged Property to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §Section 7.8;
(ed) Indebtedness in respect of judgments only or awards relating to the extent, operation and maintenance of the Mortgaged Property in accordance with this Agreement that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the Borrower shall at the time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Default;which a stay of execution shall have been obtained pending such appeal or review; or
(fe) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and
(g) subject business relating to the provisions of §9Mortgaged Property. Notwithstanding anything in this Section 8.1 to the contrary, Indebtedness the Subsidiaries of the Borrower or CVOP II in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes;
(h) subject to the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties Member, Manager and Property Owner) shall be permitted to create, incur, assume, guarantee or interest therein) and related assets;
(i) subject be or remain liable, contingently or otherwise, with respect to the provisions of §9, Secured Debt that is Recourse Indebtedness, Indebtedness provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) Borrower shall not exceed fifteen percent (15.0%) of Gross Asset Value at any timebe liable, contingently or otherwise, therefor; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummatedneither Property Owner, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties Manager or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor Member shall be subordinate permitted to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness of Property Owner, Manager and Member expressly permitted pursuant to the Lenders arising under the Loan DocumentsSection 8.12(e) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCoSection 8.13(b), as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreementapplicable.
Appears in 1 contract
Restrictions on Indebtedness. The Borrower will notNeither CML nor any of the Borrowers will, and none will not permit any Guarantor or of their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the BorrowerCML, the Guarantors such Borrower or their respective Subsidiaries such Subsidiary incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(dc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8ss.9.8;
(ed) Indebtedness in respect of judgments only to or awards that have been in force for less than the extentapplicable period for taking an appeal so long as execution is not levied thereunder or in respect of which CML, such Borrower or such Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for the period review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(fe) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(f) Subordinated Debt not exceeding $41,593,000 in aggregate principal amount at any time outstanding;
(g) subject to obligations under Capitalized Leases and purchase money Indebtedness incurred in connection with the provisions acquisition of §9any real or personal property by CML, such Borrower or such Subsidiary, PROVIDED that the aggregate outstanding principal amount of all such Indebtedness of CML, the Borrower or CVOP II in respect of Derivatives Contracts that are entered into in the ordinary course of business Borrowers and their Subsidiaries permitted under this paragraph (g) shall not for speculative purposesexceed $7,500,000 at any one time;
(h) subject to Indebtedness not otherwise permitted by this ss.10.1 existing on the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) datE hereof and related assetslisted and described on SCHEDULE 10.1 hereto;
(i) subject Indebtedness of a Guarantor which is a Subsidiary of any Borrower to the provisions such Borrower in respect of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such periodloans permitted by ss.10.3(e);
(j) subject Indebtedness of any Borrower to CML in respect of Investments by CML in such Borrower permitted under ss.10.3(i);
(k) Indebtedness of NordicTrack under the provisions Monogram Credit Card Program and the GE Capital Credit Card Program; and
(l) Indebtedness consisting of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have guaranties by CML or any of the Pool Properties or any interest therein or its Subsidiaries of obligations of any direct or indirect ownership interest Subsidiaries of such Person in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form respect of credit support for operating leases of such Unsecured DebtSubsidiary; and
(km) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect CML to any Indebtedness (other than Indebtedness to the Lenders arising Borrower in respect of Investments by such Borrower in CML permitted under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantorss.10.3(j), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement.
Appears in 1 contract
Restrictions on Indebtedness. The Borrower Borrowers will not, and will not permit any Guarantor or their respective of the Designated Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders Lenders, the Agent and the Collateral Agent arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors such Borrower or their respective Subsidiaries such Designated Subsidiary incurred in the ordinary course of business but business, including, without limitation, obligations owed to customers arising out of layaway transactions, not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(c) with the consent of the Agent, upon consultation with the Lenders, such consent not to be unreasonably withheld, Indebtedness in respect of swap agreements, futures contracts, derivatives and the like;
(d) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8Section 8.8;
(e) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which any of the period Borrowers or the Designated Subsidiaries shall at the time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(f) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(g) subject to obligations under Consolidated Capitalized Leases and guaranties thereof by the provisions Borrowers, or either of §9, Indebtedness of the Borrower or CVOP II in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposesthem;
(h) subject to Consolidated Rental Obligations and guaranties by the provisions Borrowers, or either of §9them, Non-Recourse Indebtedness that is secured by Real Estate (of any of the foregoing or of any other than the Pool Properties or interest therein) and related assetsoperating leases;
(i) subject to Indebtedness incurred in connection with the provisions acquisition after the date hereof of §9, Secured Debt that is Recourse Indebtednessany personal property by any of the Borrowers or the Designated Subsidiaries, provided that (i) such Indebtedness shall be without recourse to any of the Borrowers or the Designated Subsidiaries, (ii) the aggregate principal amount of such Secured Debt (excluding Indebtedness of the Obligations Borrowers and the Hedge Obligations) Designated Subsidiaries shall not exceed fifteen one hundred percent (15.0100%) of Gross Asset Value at the cost to such Borrower or such Designated Subsidiary of the personal property so acquired, and (iii) the aggregate principal amount of the cost to the Borrowers and the Designated Subsidiaries of the personal property so acquired during any time; provided, however, that for one period of four set forth in the table in Section 10.5 hereof together with (4without duplication) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding Consolidated Capital Expenditures made during such period, shall not, during such period, exceed the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during amount of Consolidated Capital Expenditures set forth in such table for such period;
(j) subject Indebtedness, consistent with the past practices of either of the Borrowers owing to the provisions of §9other Borrower;
(k) Indebtedness, Unsecured Debt which is pari passu consistent with the past practices of (i) any of the Borrowers to the Designated Subsidiaries in an aggregate amount not to exceed $10,000,000, (ii) any of the Designated Subsidiaries to the Borrowers in an aggregate amount not to exceed $10,000,000 and (iii) any of the Borrowers or the Designated Subsidiaries, owing by any of the Borrowers or the Designated Subsidiaries to any of the Excluded Subsidiaries in an aggregate amount not to exceed $5,000,000;
(l) Indebtedness incurred in connection with the Receivables Securitization Facility Documents;
(m) Indebtedness owed by any of the Borrowers or the Designated Subsidiaries to trade vendors, in the amount of the cost to such Borrower or such Designated Subsidiary of inventory on consignment from such trade vendors;
(n) Indebtedness constituting any funded or unfunded pension fund or other employee benefit plan obligations or liabilities, whether insured or otherwise, but only to the extent that they are permitted to remain unfunded pursuant to applicable law and to Section 9.8 hereof;
(o) other Indebtedness existing as of the Closing Date and described on Schedule 9.1(o);
(p) Indebtedness, consistent with the Plan, owing by any of the Borrowers or the Designated Subsidiaries (i) to the Litigation Entity, in clause an aggregate amount not to exceed $3,500,000 minus the aggregate amount of Investments made by the Borrowers and the Designated Subsidiaries in the Litigation Entity or any corporate general partner of the Litigation Entity as permitted by Section 9.3(n) hereof or (ii) in respect of settlement agreements relating to litigation claims arising prior to the date of the Plan and either approved by the Bankruptcy Court prior to the Effective Date or consented to by the Agent and the Lenders or disclosed on Schedule 9.1(p) hereto;
(q) the Debenture Debt;
(r) Indebtedness in respect of the Tax Sharing Agreements;
(s) Indebtedness incurred pursuant to the Director Indemnity Agreement, not to exceed $1,000,000;
(t) other Indebtedness, to the extent not otherwise included in subparagraphs (a) abovethrough (s) of this Section 9.1, provided that such Unsecured Debt described in this §8.1(j) may have an aggregate amount not to exceed $100,000,000 minus any aggregate outstanding principal amount of the Pool Properties or any interest therein or any direct or indirect ownership interest Debentures, which Indebtedness is subordinated to the Obligations pursuant to subordination terms substantially similar to those contained in the Borrower Collateral Agency Agreement or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debtpursuant to subordination terms which are otherwise acceptable to the Agent in all respects; and
(ku) unsecured Indebtedness of Subsidiaries of Borrowerother Indebtedness, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything extent not otherwise included in this Agreement to the contrary, subparagraphs (ia) none of the Indebtedness described in §8.1(hthrough (t) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this AgreementSection 9.1, have any of the Pool Properties as in an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect aggregate amount not to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreementexceed $1,000,000.
Appears in 1 contract
Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor or their respective Subsidiaries to, createCreate, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Agent and the Lenders (and their respective Affiliates) arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries Borrower incurred in the ordinary course of business but not incurred other than through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(dc) Indebtedness (other than relating to the Eligible Unencumbered Properties) in an aggregate amount not in excess of $250,000 in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.88.9;
(d) Indebtedness (other than relating to the Eligible Unencumbered Properties) in an aggregate amount not in excess of $1,000,000 in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which, at the time, a good faith appeal or proceeding for review is being prosecuted, and in respect of which a stay of execution shall have been obtained pending such appeal or review;
(e) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(f) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(f) Secured Indebtedness of the Borrower incurred after the Closing Date, provided that: (i) such Indebtedness is Without Recourse to the Borrower or the Trust and is Without Recourse to any of the respective assets of any of the Borrower or the Trust other than to the specific Real Estate Asset or Assets acquired, refinanced or rehabilitated with the proceeds of such Indebtedness, (ii) at the time any such Indebtedness is incurred and after giving effect thereto, there exists no Default or Event of Default hereunder and (iii) such Indebtedness, in the aggregate, does not exceed sixty percent (60%) of Consolidated Gross Asset Value;
(g) subject contingent liabilities of the Borrower disclosed in the financial statements referred to in §7.4 or on Schedule 9.1(g) hereto, and such other contingent liabilities of the provisions Borrower having a combined aggregate potential liability of §9, not more than $1,000,000 at any time;
(h) Indebtedness of the Borrower or CVOP II for the purchase price of capital assets (other than Real Estate Assets but including Indebtedness in respect of Derivatives Contracts that are entered into Capitalized Leases) incurred in the ordinary course of business and not for speculative purposes;
(h) subject to the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtednessbusiness, provided that the aggregate principal amount of such Secured Debt Indebtedness permitted by this clause (excluding the Obligations and the Hedge Obligationsi) shall not exceed fifteen percent (15.0%) of Gross Asset Value $500,000 at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debttime outstanding; and
(ki) unsecured Recourse Indebtedness of Subsidiaries of Borrower, CVOP II or, from and the Borrower incurred after the MergerClosing Date (other than relating to the Eligible Unencumbered Properties) in connection with the purchase of or the construction of or renovation of improvements on any Real Estate Asset, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that (i) the aggregate principal amount of Indebtedness permitted by this clause (j) shall not exceed $10,000,000 at any time outstanding, and (ii) at the time any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from is incurred and after the Mergergiving effect thereto, CVOP I that is a Guarantor shall be subordinate to the repayment there exists no Default or Event of the Obligations on terms reasonably acceptable to AgentDefault hereunder. Notwithstanding anything the foregoing, in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above no event shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors Trust or any of their respective Subsidiaries shall createincur or have outstanding (i) unhedged variable rate Indebtedness in excess of twenty-five percent (25%) of Consolidated Gross Asset Value, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4ii) any Subsidiary unsecured Indebtedness for borrowed money. It is understood and agreed that the provisions of this §9.1 shall not apply to Indebtedness of any Partially-Owned Entity which is Without Recourse to the Borrower or from and after the MergerTrust, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) of their respective assets. The terms and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms provisions of this Agreement§9.1 are in addition to, and (B) not in limitation of, the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by covenants set forth in §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement10.
Appears in 1 contract
Samples: Revolving Credit Agreement (First Potomac Realty Trust)
Restrictions on Indebtedness. The Borrower (a) Subject to the provisions of §9, the Borrowers will not, and will not permit any Guarantor or of their respective Restricted Subsidiaries or any of the Guarantors to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ai) Indebtedness to the Lenders arising under any of the Loan Documents;
(b) Indebtedness to Documents and the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services[Intentionally omitted];
(diii) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(eiv) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the period applicable Borrower shall at the time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(fv) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(gvi) subject to the provisions of §9, [Intentionally Omitted];
(vii) Indebtedness of the Borrower or CVOP II in respect of Derivatives Contracts that are entered into reverse repurchase agreements having a term of not more than one hundred eighty (180) days with respect to Investments described in the ordinary course of business and not for speculative purposes§8.3(a), (b) or (e);
(hviii) subject recourse Indebtedness of Borrowers and Guarantors not to the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that exceed $100,000,000.00 in the aggregate amount of such Secured Debt (excluding the Obligations and Loans, the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Performance Obligations and Indebtedness under §§8.1(a)(i) and the Hedge ObligationsConference Center Loan pursuant to §8.1(a)(xiv)(A) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject exceeding $36,100,000.00 with respect to the provisions of Conference Center Loan), but including, without limitation, recourse Indebtedness incurred pursuant to §98.1(a)(xiv)(B), Unsecured Debt which is pari passu with §8.1(a)(xv) or §8.1(a)(xvi) (to the Indebtedness extent a claim has been made pursuant to any guaranty or indemnity described in clause (a) abovetherein)), provided that such Unsecured Indebtedness does not cause the Borrowers to fail to comply with the financial covenants contained in §9.2 and §9.5 below after recalculating the interest coverage ratio and Fixed Charge Coverage Ratio for the most recent Quarterly Measurement Date on a pro forma basis to give effect to such Indebtedness, and the maximum Total Debt described in this Ratio permitted by §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and9.1 is not exceeded;
(kix) [Intentionally omitted];
(x) unsecured Indebtedness in respect of Subsidiaries of Borrowerthe Partner Subordinated Debt, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that which is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement pursuant to the contraryPartner Subordination and Standstill Agreement;
(xi) [Intentionally omitted];
(xii) [Intentionally omitted];
(xiii) unsecured Indebtedness between Commercial Company and Land Company pursuant to the Funding Agreement, which is subordinate to the Obligations pursuant to the Funding Subordination and Standstill Agreement;
(ixiv) none Indebtedness secured solely by the Conference Center (A) which, in connection with the Conference Center Loan may be recourse to Borrowers and Guarantors and shall not, up to a maximum principal amount of not more than $36,100,000.00, be included as recourse Indebtedness for the purposes of §8.1(a)(viii) above; provided that (B) any readvance, increase or refinancing of the Conference Center Loan that is recourse to either of Borrowers or Guarantors in excess of $36,100,000.00 in principal amount shall be included as recourse Indebtedness described for the purposes of §8.1(a)(viii) above;
(xv) Indebtedness of Borrowers under guarantees or indemnities with respect to customary non-recourse carve outs approved by Agent relating to Indebtedness of its Unrestricted Subsidiaries permitted pursuant to §8.1(b)(v); and
(xvi) Indebtedness of the Borrowers and their Restricted Subsidiaries (including without limitation obligations under completion guaranties), provided such Indebtedness:
(A) does not exceed $225,000,000.00 in the aggregate (which for the purposes hereof shall also include any Indebtedness under §8.1(h8.1(a)(viii) and §8.1(b)(v));
(iB) above shall have except with respect to any Indebtedness otherwise permitted under §8.1(a)(viii), is incurred solely to finance (1) the acquisition of additional undeveloped residential land or undeveloped commercial land to be added to the Woodlands Project or (2) the construction by a Borrower or such Restricted Subsidiary of Vertical Commercial Improvements to the Commercial Land or Residential Land, if applicable, or permanent refinancing thereof (it being agreed that the proceeds of a permanent refinancing of such improvements may exceed the amount of the applicable construction loan) or (3) Municipal Utility District Contracts of such Borrower or Restricted Subsidiary; and
(C) except with respect to any Indebtedness otherwise permitted under §8.1(a)(viii), with respect to any property on which Vertical Commercial Improvements are constructed, does not exceed seventy percent (70%) of the fair market value of such property; provided that (1) with respect to the Speculative Development of Vertical Commercial Improvements on any single parcel of Commercial Land or Residential Land, if applicable, such Indebtedness incurred for the construction of such Vertical Commercial Improvements does not exceed sixty-five percent (65%) of the costs for such development (including the Appraised Value of the subject Commercial Land or Residential Land, if applicable) (in each instance the balance of the acquisition and development costs to be covered by equity), and (2) with respect to the development of Build-To-Suit Properties, such Indebtedness does not exceed ninety percent (90%) of the costs for such development (including the cost of the subject Commercial Land or Residential Land, if applicable) (in each instance the balance of the acquisition and development costs to be covered by equity).
(b) The Borrowers will not permit any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Unrestricted Subsidiaries shall to create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(other than i) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the Lenders arising extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8 (assuming for the purposes hereof that §7.8 is applicable to Unrestricted Subsidiaries);
(ii) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the applicable Unrestricted Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review;
(iii) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(iv) Indebtedness in respect of reverse repurchase agreements having a term of not more than one hundred eighty (180) days with respect to Investments described in §8.3(a), (b) or (e); and
(v) Indebtedness of Unrestricted Subsidiaries (including without limitation obligations under completion guaranties), provided such Indebtedness:
(A) does not exceed $225,000,000.00 in the Loan Documentsaggregate (which for the purposes hereof shall also include any Indebtedness under §8.1(a)(xvi));
(B) [Intentionally omitted];
(C) is incurred solely to finance (1) the acquisition of additional undeveloped residential land or undeveloped commercial land to be added to the Woodlands Project or (2) the construction by such Unrestricted Subsidiary of Vertical Commercial Improvements to the Commercial Land or Residential Land, if applicable, or permanent refinancing thereof (it being agreed that the proceeds of a permanent refinancing of such improvements may exceed the amount of the applicable construction loan) or (3) Municipal Utility District Contracts of such Unrestricted Subsidiary; and
(D) with respect to any property on which there is a Lien on any Equity InterestsVertical Commercial Improvements are constructed, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate does not exceed seventy percent (70%) of the fair market value of such Person, property; provided that (A1) with respect to the Speculative Development of Vertical Commercial Improvements on any single parcel of Commercial Land or Residential Land, if applicable, such Indebtedness incurred for the construction of such Vertical Commercial Improvements does not exceed sixty-five percent (65%) of the costs for such development (including the Appraised Value of the subject Commercial Land or Residential Land, if applicable) (1) Borrowerin each instance the balance of the acquisition and development costs to be covered by equity), and (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any the development of Build-To-Suit Properties, such Indebtedness which is permitted by §8.1(hdoes not exceed ninety percent (90%) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly costs for such development (including the cost of the subject Commercial Land or indirectly owns a Pool Property shall createResidential Land, incur, assume, guarantee or if applicable) (in each instance the balance of the acquisition and development costs to be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted covered by §8.1(j) subject to the terms of this Agreementequity).
Appears in 1 contract
Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors Guarantor or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(d) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(e) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(f) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and
(g) subject to the provisions of §9, Indebtedness of the REIT and Borrower or CVOP II in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes;
(h) subject to the provisions of §9, Non-Recourse Indebtedness Secured Debt that is secured by Real Estate Recourse Indebtedness, provided that the aggregate amount of such Indebtedness shall not exceed fifteen percent (other than the Pool Properties or interest therein) and related assets15.0%);
(i) subject to the provisions of §9, Secured Debt that is Recourse IndebtednessDebt, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen thirty five percent (15.035.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such periodValue;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Unencumbered Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I Borrower to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I Borrower that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h8.1(g), (h) and (i) above shall have any of the Unencumbered Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Unencumbered Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iiiz) no Subsidiary of the Borrower which directly or indirectly owns a an Unencumbered Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Carter Validus Mission Critical REIT, Inc.)
Restrictions on Indebtedness. The Borrower Borrowers will not, and will not permit any Guarantor or their respective Subsidiaries Subsidiary to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders Banks and the Agent arising under any of this Agreement or the other Loan Documents;
(b) Existing Indebtedness to as listed on SCHEDULE 6.1 hereto, on the Lender Hedge Providers terms and conditions in respect effect as of any Hedge Obligationsthe date hereof;
(c) current Current liabilities of the Borrower, the Guarantors or their respective Subsidiaries Borrowers incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(d) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8Section 5.6 and Indebtedness secured by liens of carriers, warehousemen, mechanics and materialmen permitted by Section 6.2;
(e) Indebtedness in respect of judgments only to or awards which have been in force for less than the extentapplicable period for taking an appeal so long as execution is not levied thereunder or in respect of which such Borrower shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review and in respect of which the Borrowers have maintained adequate reserves; and Indebtedness in respect of a final judgment against any Borrower which is undischarged, for unsatisfied and unstayed and which, with other outstanding final judgments, undischarged against the period and for an amount Borrowers does not resulting exceed $1,000,000 in an Event of Defaultaggregate amount;
(f) endorsements for collectionOther Indebtedness, deposit not to exceed $5,000,000 in the aggregate, incurred after the date hereof (including existing Indebtedness of any Subsidiaries of the Borrowers acquired after the date hereof), through the borrowing of money or negotiation and warranties the obtaining of products or servicescredit, in each case incurred in connection with the ordinary course lease or acquisition of business; and
property or fixed assets useful or intended to be used in carrying on the business of the Borrowers and their Subsidiaries, PROVIDED THAT all such Indebtedness in excess of $1,000,000 (g"Additional Indebtedness") subject shall have a final maturity date after the Maturity Date, and PROVIDED FURTHER that to the provisions extent that scheduled principal payments of §9such Additional Indebtedness are payable after the Maturity Date, Indebtedness of the Borrower or CVOP II in respect of Derivatives Contracts that are entered into in Total Commitment Amount, as applicable, shall be reduced by the ordinary course of business and not for speculative purposes;
(h) subject to the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreementpayments.
Appears in 1 contract
Samples: Revolving Credit Agreement (TRC Companies Inc /De/)
Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor or their respective of its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ai) Indebtedness to the Lenders arising under any of the Loan Documents;
(bii) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current Current liabilities of the Borrower, the Guarantors Borrower or their respective its Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(diii) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §Section 7.8;
(eiv) Secured purchase money debt or capitalized lease obligations;
(v) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the period Borrower shall at the time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(fvi) endorsements Endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(gvii) subject Up to $750,000 of Indebtedness incurred in the ordinary course of business for capital expenditures (e.g computer system);
(viii) Indebtedness to Xxxxxx Xxx, Xxxxxxx Mac, Xxxxxx Xxx, FHA or other parties with whom the Borrower and its Subsidiaries originate, sell, repurchase or service Mortgage Loans, to the provisions extent directly relating to or arising out of §9such origination, sale, repurchase, or servicing in the ordinary course of business consistent with past practices;
(ix) Indebtedness secured by real property acquired upon foreclosure of Mortgages, which, either (x) is so secured at the time of such acquisition, or (y) is directly related to such real property, not in excess of the fair market value thereof, and reasonably expected by the Borrower or CVOP II in respect the subject Subsidiary to be recovered from the sale or other disposition of Derivatives Contracts that are entered into the subject real property;
(x) Unsecured Indebtedness for borrowed money incurred in the ordinary course of business and not for speculative purposes;
(h) subject exceeding $750,000, plus intercompany liabilities which have a maturity date which is later than the Maturity Date and which are subordinated to the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject Obligations pursuant to subordination agreements reasonably satisfactory to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) Agent which shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor permit repayment as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor long as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreementno Default then exists, and (B) no Default would thereupon occur (including on a pro forma basis as if applicable financial covenants were tested as of the Subsidiary Guarantors may guarantee date of such repayment;
(xi) Indebtedness (exclusive of the Indebtedness referred to in clause (x) above) incurred to finance no greater than 100% of the purchase or leasing of equipment, in the ordinary course of business;
(xii) Indebtedness incurred in the ordinary course of business secured by one or more specific assets, in each instance the principal amount of which shall not exceed the GAAP book value of the subject asset(s);
(xiii) Guaranties by the Borrower for the benefit of Xxxxxxx Mac or Xxxxxx Xxx regarding obligations of Capri Capital Finance LLC, or any of the Borrower's Subsidiaries in the ordinary course of business consistent with past practices; and
(xiv) other Unsecured Debt permitted by §8.1(j) subject to Indebtedness existing on the terms date of this Agreement; Agreement and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreementlisted and described on SCHEDULE 7.14.1 hereto.
Appears in 1 contract
Samples: Mortgage Warehousing Credit and Security Agreement (Chartermac)
Restrictions on Indebtedness. The Borrower will not, and Loan Parties will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ai) (x) Indebtedness to the Lenders arising under any of the Loan Documents, (y) Hedge Obligations to a Lender Hedge Provider, and (z) Indebtedness to any counterparty other than a Lender Hedge Provider with respect to any Derivatives Contract made in the ordinary course of business (and not for speculative purposes);
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(cii) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(diii) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(eiv) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(fv) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(gvi) Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity in the ordinary course of business in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith;
(vii) (a) Secured Recourse Indebtedness of Parent Borrower, Parent Guarantor, or IR OpCo as and to the extent not prohibited (and subject to the provisions of limitations set forth) in §9, 9.5 and (b) Unsecured Recourse Indebtedness of the Borrower or CVOP II Loan Parties as and to the extent not prohibited (and subject to the limitations set forth) in §9.9;
(viii) (a) the Indebtedness set forth on Schedule 8.1 hereto, and any Permitted Refinancing Indebtedness in respect of Derivatives Contracts any such Indebtedness, (b) Indebtedness (including Capitalized Leases) financing the acquisition or replacement of equipment and, limited as to each of the Subsidiary Borrowers, to $25,000.00 per fiscal year, and (c) intercompany Indebtedness of the Loan Parties outstanding from time to time; provided that are all such intercompany Indebtedness of any Loan Party owed to any Subsidiary of Parent Guarantor that is not a Loan Party shall be subordinated to the Obligations pursuant to an Intercompany Note;
(ix) Non-Recourse Indebtedness entered into in the ordinary course of business and not for speculative purposesof the Loan Parties (other than a Subsidiary Borrower) (including, without limitation, any Indebtedness referred to in the proviso to the definition of Secured Recourse Indebtedness);
(hx) [Reserved];
(xi) Recourse Indebtedness consisting of the Non-Recourse Exclusions in respect of Non-Recourse Indebtedness permitted to be incurred pursuant to §8.2(ix);
(xii) subject to the provisions of §99.5, Non-Recourse Indebtedness that is secured by Real Estate of the Loan Parties (other than the Pool Properties or interest thereina Subsidiary Borrower) and related assets;
(i) subject in an amount not to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that exceed $100,000.00 in the aggregate amount of assumed in connection with an Investment not prohibited by this Agreement and any Permitted Refinancing Indebtedness incurred, issued or otherwise obtained to Refinance (in whole or in part) such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectivelyIndebtedness; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrarythat, (iA) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for immediately after giving effect to such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms no Event of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool Default exists or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors is continuing or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreementwould result therefrom, and (B) such Indebtedness is and remains solely the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary obligation of the Borrower which directly Person and/or such Person’s subsidiaries that are acquired and such Indebtedness was not incurred in anticipation of such Investment;
(a) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letters of credit, warehouse receipt or indirectly owns a Pool Property shall createsimilar facilities entered into in the ordinary course of business (including in respect of workers’ compensation claims, incurhealth, assumedisability or other employee benefits or property, guarantee casualty or be liability insurance or remain liable, contingently, self-insurance or other Indebtedness with respect to any reimbursement-type obligations regarding workers’ compensation claims) and (b) Indebtedness other than Indebtedness represented by letters of credit, to the Lenders extent such letters of credit support Indebtedness otherwise permitted under this §8.1(xiii);
(xiv) Indebtedness arising under the Loan Documentsfrom agreements providing for deferred compensation, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted indemnification, adjustments of purchase price (including “earnouts”) or similar obligations, in each case entered into in connection with any Investments not prohibited by §8.1(j) subject to the terms of this Agreement;
(xv) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations incurred in the ordinary course of business and not in connection with the borrowing of money;
(xvi) Indebtedness consisting of obligations to pay insurance premiums arising in the ordinary course of business and not in connection with the borrowing of money;
(xvii) Indebtedness representing deferred compensation to employees, consultants or independent contractors of, Parent Guarantor and its Subsidiaries incurred in the ordinary course of business or in connection with any Investments not prohibited by this Agreement;
(xviii) obligations, under cash management agreements, cash management services and other Indebtedness in respect of netting services, automatic clearing house arrangements, employees’ credit or purchase cards, overdraft protections and similar arrangements in each case incurred in the ordinary course of business;
(xix) Indebtedness comprising take or pay obligations contained in supply agreements entered into the ordinary course of business; and
(xx) all customary premiums (if any), interest (including post-petition and capitalized interest), fees, expenses, charges and additional or contingent interest on obligations described in each of §8.1(i) through §8.1(xix) above.
Appears in 1 contract
Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor or their its respective Subsidiaries or any of the Guarantors to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(dc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(ed) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of a Default;
(fe) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and
(gf) subject to the provisions of §9, Indebtedness of the Borrower or CVOP II in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes;
(h) subject to the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse secured or unsecured recourse Indebtedness, provided that the aggregate amount of such Secured Debt recourse Indebtedness (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen thirty percent (15.030%) of Gross Asset Value at Value, and (ii) Non-Recourse Indebtedness, provided that none of such Persons shall incur any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j8.1(f) may unless it shall have any provided to the Agent prior written notice of the Pool Properties proposed incurrence of such Indebtedness, a statement that the borrowing will not cause a Default or any interest therein or any direct or indirect ownership interest in Event of Default and a Compliance Certificate demonstrating that the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and will be in compliance with its covenants referred to therein after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate giving effect to the repayment incurrence of the Obligations on terms reasonably acceptable to Agentsuch Indebtedness. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i8.1(f) above shall have any of the Pool Mortgaged Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, Indebtedness (provided that the Indebtedness described in §8.1(j) may, subject foregoing shall not preclude recourse to the terms general credit of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool Borrower or similar form of credit support for such Unsecured Debt, RPB) and (ii) none of the Borrower, the Subsidiary Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (including, without limitation, pursuant to any conditional or limited guaranty or indemnity agreement creating liability with respect to usual and customary exclusions from the non-recourse limitations governing the Non-Recourse Indebtedness of any Person, or otherwise) other than Indebtedness to the Lenders arising under the Loan Documentsdescribed in §§8.1(a)-(e) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreementabove.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (Republic Property Trust)
Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(d) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(e) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of a Default;
(f) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(g) subject to the provisions of §9, Indebtedness of the Borrower or CVOP II in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes;
(h) subject to the provisions of §9, Non-Recourse Indebtedness and indemnities or guarantees of Non-Recourse Exclusions (provided that is secured by Real Estate (other than for the Pool Properties or interest therein) and related assets;avoidance of doubt claims with respect to Non-Recourse Exclusions shall be considered Recourse Indebtedness as provided in the definition of Recourse Indebtedness); and
(ih) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Recourse Indebtedness of a Subsidiary of Borrower, CVOP II or, from Borrower and after the Merger, CVOP I that is a any Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement9.
Appears in 1 contract
Samples: Credit Agreement (New Senior Investment Group Inc.)
Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor or their respective Subsidiaries to, createCreate, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Agent and the Lenders (and their respective Affiliates) arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries Borrower incurred in the ordinary course of business but not incurred other than through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(dc) Indebtedness (other than relating to the Eligible Unencumbered Properties) in an aggregate amount not in excess of $250,000 in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.88.9;
(d) Indebtedness (other than relating to the Eligible Unencumbered Properties) in an aggregate amount not in excess of $1,000,000 in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which, at the time, a good faith appeal or proceeding for review is being prosecuted, and in respect of which a stay of execution shall have been obtained pending such appeal or review;
(e) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(f) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(f) Secured Indebtedness of the Borrower incurred after the Closing Date, provided that: (i) such Indebtedness is Without Recourse to the Borrower or the Trust and is Without Recourse to any of the respective assets of any of the Borrower or the Trust other than to the specific Real Estate Asset or Assets acquired, refinanced or rehabilitated with the proceeds of such Indebtedness, except that, notwithstanding the foregoing, a portion of such Indebtedness at any time outstanding not in excess of fifteen percent (15%) of Consolidated Gross Asset Value may be Recourse Indebtedness of the Borrower so long as such Indebtedness is not secured by any Eligible Unencumbered Property or a pledge of the equity of any Subsidiary that owns an Eligible Unencumbered Property, (ii) at the time any such Indebtedness is incurred and after giving effect thereto, there exists no Default or Event of Default hereunder and (iii) such Indebtedness, in the aggregate, does not exceed forty-five percent (45%) of Consolidated Gross Asset Value;
(g) contingent liabilities of the Borrower disclosed in the financial statements referred to in §7.4 or on Schedule 9.1(g) hereto, and such other contingent liabilities of the Borrower having a combined aggregate potential liability of not more than $1,000,000 at any time; and
(gh) subject to the provisions of §9, Indebtedness of the Borrower or CVOP II for the purchase price of capital assets (other than Real Estate Assets but including Indebtedness in respect of Derivatives Contracts that are entered into Capitalized Leases) incurred in the ordinary course of business and not for speculative purposes;
(h) subject to the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtednessbusiness, provided that the aggregate principal amount of such Secured Debt Indebtedness permitted by this clause (excluding the Obligations and the Hedge Obligationsh) shall not exceed fifteen percent (15.0%) of Gross Asset Value $500,000 at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agenttime outstanding. Notwithstanding anything the foregoing, in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above no event shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors Trust or any of their respective Subsidiaries incur or have outstanding unhedged variable rate Indebtedness in excess of twenty-five percent (25%) of Consolidated Gross Asset Value. It is understood and agreed that the provisions of this §9.1 shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect not apply to Indebtedness of any Indebtedness (other than Indebtedness Partially Owned Entity which is Without Recourse to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the MergerTrust, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) of their respective assets. The terms and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms provisions of this Agreement§9.1 are in addition to, and (B) not in limitation of, the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by covenants set forth in §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement10.
Appears in 1 contract
Samples: Revolving Credit Agreement (First Potomac Realty Trust)
Restrictions on Indebtedness. The Borrower will not, and will not permit any Subsidiary Guarantor or any of their respective Subsidiaries (including, without limitation, any Unencumbered Pool Property Owners, but expressly excluding any direct or indirect owner of Borrower, including, without limitation, Monogram Parent) to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders arising under any of the Loan Documents;
(b) Indebtedness of the Borrower to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities (including current liabilities being contested in good faith) of the Borrower, the Subsidiary Guarantors or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(d) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(e) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(f) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(g) subject to the provisions of §9, Indebtedness of the Borrower or CVOP II in respect of Derivatives Contracts that are entered into in the ordinary course of business and Capitalized Leases, not to exceed $250,000.00 for speculative purposes;
(h) subject to the provisions of §9, Non-Recourse Indebtedness that is secured by each Unencumbered Pool Property or other Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) aboveEstate, provided that such Unsecured Debt described in this §8.1(j) may Indebtedness shall not have any of the Unencumbered Pool Properties (except for the specific items leased under such Capitalized Leases) or any interest therein or any direct or indirect ownership interest in the Borrower or Borrower, any Subsidiary Guarantor or any of their respective Subsidiaries (including, without limitation, any Developer JV or Unencumbered Pool Property Owner) as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debtcollateral; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(jh) subject to the terms and conditions of this Agreement; Agreement and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt any Put Options, Sub-REIT Preferred Equity and Residual Developer Interests permitted by §8.1(j) subject to the terms of this Agreementhereunder.
Appears in 1 contract
Samples: Credit Agreement (Monogram Residential Trust, Inc.)
Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(d) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(e) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(f) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(g) subject to the provisions of §9, Indebtedness of the REIT, the Borrower, International Holdco, Global II Holdco or any other Subsidiary of Borrower (other than a Subsidiary of Borrower which is a Guarantor or CVOP II an Unencumbered Property Subsidiary) in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes;; and
(h) subject to the provisions of §9, (i) Non-Recourse Indebtedness that is secured by Real Estate (other than the Unencumbered Pool Properties Assets or interest therein) and related assets;assets (and guaranties of Non-Recourse Exclusions with respect to such Indebtedness), and (ii) Secured Recourse Indebtedness (and guaranties of such Indebtedness), provided that no such Secured Recourse Indebtedness shall be secured by any Unencumbered Pool Asset or interest therein; and
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount Unsecured Indebtedness (and guaranties of such Secured Debt Indebtedness) (excluding in each case, other than Indebtedness of the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described type included in clause (af) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from REIT and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agentits Subsidiaries. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Unencumbered Pool Properties Assets or any interest therein or any direct or indirect ownership interest in the Borrower, any Subsidiary Guarantor or the Unencumbered Property Subsidiary owning such asset as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, and (ii) none of the BorrowerSubsidiaries of Borrower which directly or indirectly own or lease an Unencumbered Pool Asset (including, the Guarantors or their respective Subsidiaries without limitation, any Unencumbered Property Subsidiary) shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (including, without limitation, pursuant to any conditional or limited guaranty or indemnity agreement creating liability with respect to usual and customary exclusions from the non-recourse limitations governing the Non-Recourse Indebtedness of any Person, or otherwise) other than Indebtedness to the Lenders arising under the Loan Documentsdescribed in §§8.1(a), 8.1(b), 8.1(c), 8.1(d), 8.1(e), 8.1(f) or 8.1(i) and, solely with respect to which there is a Lien on any Equity InterestsInternational Holdco and Global II Holdco, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, 8.1(h) above (provided that (A) (1) Borrowersuch Indebtedness shall not be secured by an Unencumbered Pool Asset, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor asset related thereto or any Person having interest therein, nor any direct or indirect ownership interest of the Borrower, any Guarantor or any of their respective Subsidiaries in any such Subsidiary GuarantorUnencumbered Property Subsidiary), may and (iii) REIT shall not create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by (including, without limitation, pursuant to any conditional or limited guaranty or indemnity agreement creating liability with respect to usual and customary exclusions from the non-recourse limitations governing the Non-Recourse Indebtedness of any Person, or otherwise) other than Indebtedness described in §§8.1(a)-(g) and (i) above and, solely with respect to REIT providing unsecured guaranties of such Indebtedness, the Indebtedness described in §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreementabove.
Appears in 1 contract
Restrictions on Indebtedness. The Subject to the further restrictions of §9, neither Borrower nor the Guarantors will not, and will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders and the Agent arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries such Persons incurred in the ordinary course of business but not incurred through (i) the borrowing of money, money or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(dc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor therefore shall not at the time be required to be made in accordance with the provisions of §7.87.12;
(ed) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which such Person shall at the period time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(fe) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(f) Indebtedness of Borrower and Guarantors with respect to Bonding Obligations (less the aggregate value of completed work);
(g) subject to the provisions of §9, Indebtedness of the Borrower or CVOP II in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposesSenior Term Loan;
(h) subject to the provisions Indebtedness of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, Joint Venture with respect to Other Projects (but excluding any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions of Signal Landmark or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary GuarantorSignal Holdings), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (California Coastal Communities Inc)
Restrictions on Indebtedness. The Borrower Bond Issuer and Highlands will not, and will not permit any Guarantor or of their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders Bank and the holders of the Bonds arising under any of the Loan Reimbursement Agreement and the Related Documents, and the documents related thereto, Indebtedness of Red Canyon in a principal amount not to exceed $29,500,000, on terms similar to those applicable to the construction financing for Phase I of the Development provided by Nationsbank, the proceeds of which will be used to construct Phase II of the Development;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors Account Parties or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(dc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8Section 5.8;
(ed) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the period affected Account Parties shall at the time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(fe) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(f) Indebtedness of the Bond Issuer to WRP under the WRP Reimbursement Agreement;
(g) subject the mortgage loan to the provisions of §9Park at Highlands LLC by Federal Home Loan Mortgage Corporation in an amount not to exceed $34,500,000 pursuant to a Mortgage Loan Agreement dated December 24, Indebtedness of the Borrower or CVOP II in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes1997;
(h) subject the mortgage loan to the provisions of §9Red Canyon by Federal Home Loan Mortgage Corporation in an amount not to exceed $27,000,000 pursuant to a Mortgage Loan Agreement dated November 20, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assets1998;
(i) subject the loan to the provisions Silver Mesa at Palomino Park LLC by Bank of §9America, Secured Debt that is Recourse IndebtednessNational Association in an amount not to exceed $27,733,391 pursuant to a Construction Loan Agreement dated December 18, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period1998;
(j) subject the loan to the provisions Green River at Palomino Park LLC by Bank of §9America, Unsecured Debt which is pari passu with the Indebtedness described National Association in clause (a) abovean amount not exceeding US$39,400,000 pursuant to a Construction Loan Agreement dated February 8, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt2000; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after to refinance the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything loan specified in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreementabove.
Appears in 1 contract
Samples: Letter of Credit Reimbursement Agreement (Wellsford Real Properties Inc)
Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor or their respective its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors Borrower or their respective its Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(dc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(ed) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an a Default or Event of Default;
(fe) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and
(g) subject to the provisions of §9, Indebtedness of the Borrower or CVOP II in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes;
(hf) subject to the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate of the Borrower and its Subsidiaries (other than the Pool Properties Guarantors, the Unencumbered Property Subsidiaries or any other Subsidiary of Borrower or a Controlled JV Entity owning an interest therein) and related assets;in a Guarantor or an Unencumbered Property Subsidiary); provided that the Borrower may provide a guaranty or indemnity with respect to Non-Recourse Exclusions in connection with such Non-Recourse Indebtedness; and
(ig) subject to the provisions of §9, Secured Debt that is Indebtedness (other than Non-Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated Borrower and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agentits Subsidiaries. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(hGuarantors, if any, nor Unencumbered Property Subsidiaries (including without limitation any Controlled JV Entity which owns a Controlled JV Entity) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, liable contingently or otherwise, with respect to any Indebtedness (other than described in §8.1(f) or any Indebtedness to the Lenders arising under the Loan Documentsdescribed in §8.1(g) with respect to which there that is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) BorrowerSecured Indebtedness, (2ii) CVOP II and from and after a Guarantor, if any, shall only provide a guaranty of other Unsecured Indebtedness of the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP IBorrower permitted pursuant to §8.1(g), and (4iii) any Subsidiary none of the Borrower Indebtedness described in §8.1(f) or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II §8.1(g) that is a Subsidiary Guarantor Secured Indebtedness shall have any of the Unencumbered Properties or any Person having interest therein or equipment related thereto or any direct or indirect ownership interest in any Guarantor, if any, or Unencumbered Property Subsidiary as collateral, a borrowing base, asset pool or any similar form of credit support for such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, Indebtedness (provided that the foregoing shall not preclude the Borrower from incurring liability with respect to any Non-Recourse Exclusions in connection with the Indebtedness which is permitted by described in §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement8.1(f)).
Appears in 1 contract
Restrictions on Indebtedness. The Borrower Parent will not, not and will not permit any Guarantor or their respective of its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Agents, the Issuing Lenders, and the Lenders arising under any of this Agreement or the other Loan Documents;
(b) Additional existing Indebtedness as listed on Schedule 10.1(b), in the amounts and on the terms and conditions in effect as of the date hereof, and any refinancing thereof on terms no less favorable to the Lender Hedge Providers Borrowers than those in respect of any Hedge Obligationseffect on the date hereof;
(c) current Current liabilities of the Borrower, the Guarantors or their respective Subsidiaries Borrowers incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(d) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8(S)9.7, and Indebtedness secured by liens of carriers, warehousemen, mechanics and materialmen permitted by (S)10.2(e);
(e) Indebtedness in respect of judgments only or awards which have been in force for less than the applicable period for taking an appeal, so long as execution is not levied thereunder or in respect of which the Borrowers shall at the time in good faith be prosecuting an appeal or proceedings for review, and in respect of which the Borrowers have maintained reserves in an amount satisfactory to the extent, for the period and for an amount not resulting in an Event of DefaultMajority Lenders;
(f) endorsements Incurrence by any Borrower of guaranty, suretyship or indemnification obligations in connection with such Borrower's performance of services for collection, deposit or negotiation and warranties of products or services, in each case incurred its respective customers in the ordinary course of its business; and;
(g) subject to the provisions of §9, Purchase money Indebtedness of the Borrower or CVOP II Borrowers incurred after the date hereof secured by Liens permitted by (S)10.2(h) hereof in respect of Derivatives Contracts that are entered into in the ordinary course of business and an aggregate amount not for speculative purposesto exceed $25,000,000 at any one time;
(h) Indebtedness of the Parent with respect to the Subordinated Debt, subject to the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assetsS)10.7 hereof;
(i) subject Unsecured Indebtedness of Smogless not to exceed an aggregate of $5,000,000 (all amounts denominated in currencies other than Dollars being expressed at their Dollar Equivalent)
(a) under its Italian credit facility, and (b) to Banco Commerciale, for performance and bid bonds and letters of credit;
(j) Unsecured Indebtedness of Smogless owing to the provisions Parent pursuant to the Smogless Note;
(k) Unsecured Indebtedness of §9Permutit Pty. Ltd. in an aggregate amount not to exceed $1,200,000 (all amounts denominated in currencies other than Dollars being expressed at their Dollar Equivalent) owing to National Australia Bank and New Zealand National Bank;
(l) the FNBB Obligations;
(m) Indebtedness of the International Borrowers owing to foreign affiliates of the Managing Agent for reimbursement obligations in respect of guaranties issued by such affiliates and backed by a Letter of Credit issued hereunder, Secured Debt in an aggregate principal amount not to exceed $10,000,000 (all amounts denominated in currencies other than Dollars being expressed at their Dollar Equivalent);
(n) Indebtedness of any Excluded Subsidiary which is non-recourse to the Borrowers (except that the capital stock of such Subsidiary (other than USF TWO, Inc.) may be pledged by a Borrower to secure such Indebtedness of such Subsidiary);
(o) Indebtedness of the Parent in an aggregate amount not to exceed $10,000,000 with respect to the guaranty by the Parent of the obligations owing from Treated Water Outsourcing, a Nalco/U.S. Filter Joint Venture to Bank of America Illinois;
(p) Existing Indebtedness (other than lines of credit provided by a bank or other financial institution) of any Subsidiary acquired after the date hereof originally incurred by such acquired Subsidiary in connection with the lease or acquisition of property or fixed assets used in the business of such acquired Subsidiary; or with respect to industrial finance bonds issued to finance the purchase of such property or assets, provided that if such Indebtedness is Recourse Indebtedness, unsecured it shall have an interest rate below the lowest rate then available to the Borrowers hereunder or shall have material call premiums or other material penalties for prepayment; and existing Indebtedness of any Subsidiary acquired after the date hereof with respect to obligations under capitalized leases or sale and leaseback transactions; provided that the aggregate amount of all such Secured Debt Indebtedness described in this subsection (excluding the Obligations and the Hedge Obligationsp) shall not exceed fifteen an aggregate amount outstanding of five percent (15.05%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period Consolidated Total Assets after giving effect to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such periodacquisitions;
(jq) subject to the provisions of §9, Unsecured Debt which is pari passu with the Additional unsecured Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest Borrowers in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debtaggregate amount not to exceed $20,000,000; and
(kr) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under call or put of shares in connection with the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate acquisition of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCoWaterPro Corporation, as guarantors only, (3) from and after described in the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this AgreementRegistration Statement.
Appears in 1 contract
Samples: Multicurrency Credit Agreement (United States Filter Corp)
Restrictions on Indebtedness. The Borrower and the Guarantors will not, and will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(d) Indebtedness in respect of (i) taxes, assessments, governmental charges or levies and (ii) claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.87.8 or §8.20, as applicable;
(e) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default[Intentionally Omitted];
(f) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(g) subject to the provisions of §9, Indebtedness Secured Debt, provided that (A) the aggregate amount of Secured Debt shall not exceed forty percent (40%) of Gross Asset Value; and (B) in addition to the Borrower or CVOP II in respect of Derivatives Contracts that are entered into limitation set forth in the ordinary course immediately preceding clause (A), the aggregate amount of business and not for speculative purposes;
(h) subject to the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt Indebtedness (excluding the Obligations and the Hedge ObligationsObligations to the extent ever secured hereunder) shall not exceed fifteen percent (15.015%) of Gross Asset Value at Value; and provided further that none of such Persons shall incur any time; providedof the Indebtedness described in this §8.1(g) in excess of $50,000,000 unless it shall have provided to the Agent prior written notice of the proposed incurrence of such Indebtedness, howevera statement that the borrowing will not cause a Default or Event of Default and a Compliance Certificate demonstrating that the Borrower and Guarantors will be in compliance with their covenants referred to therein after giving effect to the incurrence of such Indebtedness;
(h) the Indebtedness of the Borrower with respect to the QTLP Subordinate Debt, that for one period which is subordinated to the repayment of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge ObligationsObligations pursuant to QTLP Subordination and Standstill Agreement;
(i) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period[Intentionally Omitted];
(j) the Equipment Loan; and
(k) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties Borrower, REIT (following the occurrence of the IPO Event) or any interest therein Subsidiaries of the Borrower that are not Initial Subsidiary Guarantors or Additional Subsidiary Guarantors (or any direct or indirect ownership interest in owners of such Subsidiaries), provided that (i) the Borrower or any Initial Subsidiary Guarantor Guarantors and the Additional Subsidiary Guarantors may incur Unsecured Debt only if it has the Unencumbered Asset Pool Properties as an unsecured a borrowing base, asset pool or similar form and (ii) none of credit support for such Unsecured Debt; and
(kPersons shall incur any of the Indebtedness described in this §8.1(k) unsecured Indebtedness in excess of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; $50,000,000 unless it shall have provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment Agent prior written notice of the Obligations on terms reasonably acceptable proposed incurrence of such Indebtedness, a statement that the borrowing will not cause a Default or Event of Default and a Compliance Certificate demonstrating that the Borrower and Guarantors will be in compliance with its covenants referred to Agenttherein after giving effect to the incurrence of such Indebtedness. Notwithstanding anything in this Agreement to the contrary, (i) neither the Initial Subsidiary Guarantors, the Additional Subsidiary Guarantors nor any other Subsidiaries of the Borrower directly or indirectly owning an Initial Subsidiary Guarantor or an Additional Subsidiary Guarantor shall create, incur, assume, guarantee or be or remain liable contingently or otherwise, with respect to any Unsecured Debt other than Indebtedness described in §§8.1(a), (b), (c), (d), (f) and (k), (ii) none of the Indebtedness described in §8.1(h) and (i8.1(g) above shall have any of the Unencumbered Asset Pool Properties or any interest therein or equipment related thereto or any direct or indirect ownership interest in any an Initial Subsidiary Guarantor or an Additional Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, Indebtedness (provided that the foregoing shall not preclude Subsidiaries of the Parent Company (other than an Initial Subsidiary Guarantor or an Additional Subsidiary Guarantor (or any direct or indirect owners of such Subsidiaries)) to incur Non-Recourse Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any §8.1 or recourse to the general credit of the Pool Properties as an unsecured borrowing baseParent Company), asset pool or similar form of credit support for such Unsecured Debtand (iii) neither the Initial Subsidiary Guarantors, (ii) none Additional Subsidiary Guarantors nor any other Subsidiary of the Borrower, the Guarantors Borrower directly or their respective Subsidiaries indirectly owning an interest therein shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (including, without limitation, pursuant to any conditional or limited guaranty or indemnity agreement creating liability with respect to usual and customary exclusions from the non-recourse limitations governing the Non-Recourse Indebtedness of any Person, or otherwise) other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interestsdescribed in §§8.1(a)-(f), right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (Aj) (1as to QIPM only) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4k) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreementabove.
Appears in 1 contract
Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor or their respective Subsidiaries to, createCreate, incur, assumesuffer or permit to exist, guarantee or be assume or guarantee, either directly or indirectly, or otherwise become or remain liable, contingently or otherwise, liable with respect to to, any Indebtedness, except the following (which Indebtedness other than:is expressly permitted):
(a) Indebtedness to outstanding at the Lenders arising under any date of this Agreement as set forth on Schedule 5.16 and refinancings, replacements or extensions thereof, provided the Loan Documents;principal amount thereof is not increased.
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(d) Indebtedness in respect of taxesTaxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor thereof shall not at the time be required to be made in accordance with the provisions of §7.8;
Section 8.2 hereof, (eii) Indebtedness judgments or awards (A) which have been in force for less than the applicable appeal period so long as execution is not levied thereunder or in respect of judgments only which Gerber or any Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review in a manner reasonably satisfactory to the extent, for the period Lenders and in respect of which a stay of execution shall have been obtained pending such appeal or review and for an amount which adequate reserves have been established in accordance with generally accepted accounting principles or (B) not resulting in constituting an Event of Default;
Default under Section 10.1(g) and (fiii) endorsements made in connection with the deposit of items for collection, deposit credit or negotiation and warranties of products or services, in each case incurred collection in the ordinary course of business.
(c) Indebtedness in an amount not to exceed $5,000,000 in respect of purchase money security interests permitted under Section 9.2(b) hereof.
(d) Indebtedness to the Lenders under the Loan Documents.
(e) (i) Indebtedness of any Loan Party to another Loan Party; and(ii) short-term Indebtedness (i.e. Indebtedness to be repaid within 90 days) of (A) any of Gerber’s Subsidiaries to Gerber or any other Subsidiary or (B) Gerber to any of its Subsidiaries for short-term working capital needs; (iii) Indebtedness of any wholly-owned Subsidiaries of Gerber that are not Loan Parties to Loan Parties in an aggregate amount together with the amount of Investments described in Section 9.3(d)(ii) with respect to such Subsidiaries, in each case made after the Closing Date, not to exceed $30,000,000 with respect to all such Subsidiaries; (iv) Indebtedness of any Loan Party to any wholly-owned Subsidiary of Gerber that is not a Loan Party so long as such Indebtedness is subordinated to all Lender Obligations; and (v) Indebtedness of any wholly-owned Subsidiary of Gerber that is not a Loan Party to any other wholly-owned Subsidiary of Gerber that is not a Loan Party; provided, however, that notwithstanding the other terms of this Section 9.1(e), the aggregate amount of Indebtedness of any one wholly-owned Subsidiary of Gerber that is not a Loan Party incurred in accordance with clauses (iii) and (v) of this paragraph, together with (A) the amount of any Indebtedness of any Related Subsidiaries incurred in accordance with clauses (iii) and (v) of this paragraph and (B) the aggregate amount of Investments described in Section 9.3(d)(ii) and (iii) with respect to such Subsidiary and Related Subsidiaries shall not exceed $10,000,000 (other than Gerber Australia for which such amount shall not exceed $5,000,000 and Gerber Hong Kong for such amount shall not exceed $15,000,000).
(f) Indemnification, adjustment of purchase price or similar obligations, in each case, incurred in connection with any Investment permitted under Section 9.3 or the disposition of any business, assets or Equity Interests of the Borrowers and their Subsidiaries, provided that the maximum aggregate liability in respect of all such Indebtedness shall at no time exceed the gross proceeds actually received by the Borrowers and their Subsidiaries in connection with such disposition.
(g) subject to the provisions of §9, Indebtedness of the Borrower or CVOP II in respect of Derivatives Contracts the Yunique Earnout.
(h) Indebtedness in respect of the Connecticut Master Lease.
(i) Net obligations (contingent or otherwise) existing or arising under any Hedging Agreements valued at their Swap Termination Value, provided, that such obligations are (or were) entered into by Gerber or its Subsidiaries in the ordinary course of business and not for speculative purposes;
(h) subject to the provisions purposes of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreementspeculation.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Gerber Scientific Inc)
Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor or their respective of its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors Borrower or their respective its Subsidiaries incurred in the ordinary course of business but not incurred through through
(i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(dc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(ed) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(fe) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(gf) subject to the provisions of §98.1, Indebtedness of the Borrower or CVOP II in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes;
(g) subject to the provisions of §8.1, Non-Recourse Indebtedness of Subsidiaries of Borrower (other than any Guarantor) that is secured by Real Estate and related assets (which may include the Equity Interests of Subsidiaries that own Real Estate provided that such Real Estate is not an Unencumbered Pool Property);
(h) subject to the provisions of §98.1, Non-Secured Debt of Borrower that is Recourse Indebtedness, provided that the aggregate amount of all such Secured Debt that is Recourse Indebtedness that is secured by Real Estate shall not exceed ten percent (other than the Pool Properties or interest therein10%) and related assetsof Consolidated Total Adjusted Asset Value;
(i) subject to the provisions of §98.1, Secured Unsecured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations Borrower and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any timeGuarantors; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;and
(j) subject unsecured intercompany loans and advances to the provisions of extent permitted by §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively8.4; provided that any if Borrower or SCA is an obligor with respect to such Indebtedness of a Subsidiary of Borrowerintercompany loan, CVOP II or, from and after the Merger, CVOP I that is a Guarantor such loan shall be subordinate subordinated in right and time of payment to the repayment of the Obligations on terms reasonably acceptable pursuant to a subordination agreement satisfactory to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iiiw) no Subsidiary of the Borrower which directly or indirectly owns a an Unencumbered Pool Property Asset or Intercompany Loan shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documentsapplicable Intercompany Loan, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of §7.20(a)(xi), Intercompany Revolver, Hybrid Lease or Qualifying Note Receivable permitted by this Agreement and the Indebtedness permitted under §8.2(b), (c) and (e), provided that if such Subsidiary is also a Guarantor, such Guarantor shall have no Indebtedness other than Indebtedness under §8.2(a),(b), (c), (e), (i) (to the extent permitted in clause (i) and, as to SCA only, (j), (x) no Indebtedness which is a warehouse facility, repurchase agreement (except as permitted by §8.4(f)) or similar Indebtedness shall be permitted without the prior written consent of the Required Lenders, (y) except as permitted by clause (z) below, no Indebtedness (other than the Obligations) shall have any Unencumbered Pool Asset, Intercompany Loan or direct or indirect ownership interest in any Unencumbered Pool Asset, Intercompany Loan, Borrower, Hybrid Lease Fee Owner or Guarantor as collateral, a borrowing base, unencumbered asset pool or similar form of credit support for such Indebtedness, and (z) other Unsecured Debt of Borrower permitted pursuant to §8.2(i) may have the Unencumbered Pool Assets and Intercompany Loans as an unencumbered borrowing base, unencumbered asset pool or similar unsecured form of credit support for such Indebtedness and may contain restrictions on direct or indirect ownership of Guarantors and Hybrid Lease Fee Owners, which restrictions are no more restrictive than the restrictions contained in this Agreement.
Appears in 1 contract
Samples: Term Credit Agreement
Restrictions on Indebtedness. The Borrower will not, and Credit Parties will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ai) Indebtedness to the Lenders arising under any of the Loan DocumentsDocuments and Hedge Obligations to a Lender Hedge Provider;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(cii) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries Credit Parties incurred in the ordinary course of business business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(diii) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(eiv) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(fv) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(gvi) subject Indebtedness incurred to the provisions of §9any other landowners, Indebtedness of the Borrower government or CVOP II in respect of Derivatives Contracts that are entered into quasi-government or entity or similar entity in the ordinary course of business in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and not for speculative purposessimilar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith;
(hvii) subject Indebtedness under the KeyBank Revolver;
(viii) Indebtedness of the REIT Guarantor and the Borrower in connection with customary recourse carve-outs and environmental indemnifications related to the provisions of §9, Non-Recourse Indebtedness that is secured incurred by Real Estate Subsidiaries (other than any Subsidiary Guarantor) of the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) REIT Guarantor. The foregoing shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any preclude Subsidiaries of the Pool Properties or any interest therein or any direct or indirect ownership interest in the REIT Guarantor (other than Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall Guarantor) to incur Indebtedness which would be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to prohibited by the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor§8.1), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement3.2.
Appears in 1 contract
Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(d) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(e) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of a Default;
(f) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(g) subject to the provisions of §9, Indebtedness that is Recourse Indebtedness, provided that the aggregate amount of such Indebtedness (excluding the Borrower or CVOP II in respect Obligations) shall not at any time exceed five percent (5.0%) of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes;Gross Asset Value; and
(h) subject to the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than Indebtedness. Notwithstanding anything in this Agreement to the Pool Properties or interest therein) and related assets;
contrary, (i) subject to the provisions none of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause §8.1(g) or (ah) above, provided that such Unsecured Debt described in this §8.1(j) may above shall have any of the Pool Mortgaged Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Subsidiary Guarantors or their respective Subsidiaries which own a Mortgaged Property shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (including, without limitation, pursuant to any conditional or limited guaranty or indemnity agreement creating liability with respect to usual and customary exclusions from the non-recourse limitations governing the Non-Recourse Indebtedness of any Person, or otherwise) other than Indebtedness to described in §§8.1(a), 8.1(b), 8.1(c), 8.1(d), 8.1(e) and 8.1(f), (iii) none of the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor Guarantors or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may of their Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Unsecured Indebtedness, any Indebtedness which is permitted (other than the Obligations) secured by Equity Interests or rights to Distributions (so-called “mezzanine financing”), structurally subordinated Indebtedness or second priority Liens, or any revolving credit facilities (other than this Agreement)); and (iv) none of the Real Estate of REIT and its Subsidiaries as of the Closing Date shall have any Indebtedness of the type described in §8.1(h8.1(f) or (ig) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to except for the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary Indebtedness existing as of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided Closing Date that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted is secured by §8.1(j) subject to the terms of this Agreementsuch Real Estate.
Appears in 1 contract
Samples: Credit Agreement (GTJ REIT, Inc.)
Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor or their respective of its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders Banks and the Agent arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities and non-capitalized rental obligations of the Borrower, the Guarantors Borrower or their respective Subsidiaries such Subsidiary incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(dc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8(S)8.8;
(ed) 32- Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the period Borrower or such Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(fe) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(f) Indebtedness under Capitalized Leases plus Indebtedness incurred in connection with the acquisition after the date hereof of any real or personal property by the Borrower not exceeding $3,000,000 in an aggregate amount at any time outstanding;
(g) Indebtedness existing on the date hereof and listed and described on Schedule 9.1 hereto; and
(gh) subject to the provisions of §9, Indebtedness of the Borrower or CVOP II obligations under guaranties in respect of Derivatives Contracts that are entered into Indebtedness of others in the ordinary course of business and not for speculative purposes;
(h) subject to the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the an aggregate amount not in excess of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value $100,000 at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement.
Appears in 1 contract
Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders Banks and the Agent arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries Borrower incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(dc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.89.8;
(ed) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the period Borrower shall at the time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(fe) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(gf) subject to Indebtedness incurred in connection with the provisions acquisition after the date hereof of §9, Indebtedness of any personal property constituting fleet vehicles or forklifts by the Borrower or CVOP II in respect of Derivatives Contracts that are entered into in the ordinary course of business and business;
(g) Indebtedness incurred in connection with the acquisition after the date hereof of any real or personal property not otherwise provided for speculative purposesunder this 10.1 by the Borrower, provided that the aggregate principal amount of such Indebtedness of the Borrower permitted by this clause (g) shall not exceed the aggregate amount of $500,000 at any one time;
(h) subject to Indebtedness in respect of amounts borrowed by the provisions Borrower against the cash surrender value of §9, Non-Recourse Indebtedness that is secured life insurance policies purchased by Real Estate (other than the Pool Properties or interest therein) Borrower covering certain employees of the Borrower and related assetsnaming the Borrower as the beneficiary thereof;
(i) subject to Indebtedness included in the provisions of §9Borrower's balance sheet dated September 30, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period1993;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debtpermitted by 10.4; and
(k) unsecured Indebtedness in respect of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreementoperating leases.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Arrow Automotive Industries Inc)
Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor or their its respective Subsidiaries or any of the Guarantors to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(dc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(ed) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of a Default;
(fe) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(gf) subject to the provisions of §9, Indebtedness of the Borrower or CVOP II in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes;
(h) subject to the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) Recourse Indebtedness outstanding at any one time shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen seven and one-half percent (17.57.5%) during such periodof Consolidated Total Asset Value;
(jg) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Non-Recourse Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided Borrower that any such are not Guarantors;
(h) Non-Recourse Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is Borrower or a Guarantor shall be subordinate constituting purchase money indebtedness or incurred in connection with equipment financing, not to exceed $2,000,000.00 in the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, aggregate outstanding at any time;
(i) none Indebtedness in respect of the Indebtedness described in §8.1(h) and (i) above shall have any Existing Letters of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this AgreementCredit; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement.and
Appears in 1 contract
Restrictions on Indebtedness. The Borrower will Grand Parent and the ---------------------------- Company shall not, and will shall not permit any Guarantor or their respective Subsidiaries other Omnipoint Entity to, create, incur, assume, guarantee suffer to exist or be otherwise become or remain liable, contingently directly or otherwise, indirectly liable with respect to to, any Indebtedness Indebtedness, other than:
(ai) Indebtedness to hereunder and under the Lenders arising under any of the Loan other Note Documents;
(bii) Indebtedness outstanding on the Closing Date and, with respect to the Lender Hedge Providers in respect Omnipoint Loan Parties, set forth on Schedule 7.1 to the Loan Agreement (on a pro forma basis, after giving effect to the refinancing, retirement and payment of any Hedge Obligationsamounts outstanding under the Existing Loan Agreement);
(ciii) current liabilities Indebtedness permitted under Section 10.3;
(iv) Additional Loans as permitted pursuant to Section 2.1(b) of the BorrowerLoan Agreement;
(v) Indebtedness of Grand Parent that is (i) unsecured or secured solely by the assets of any one or more Non-Party Subsidiaries, (ii) not guaranteed or supported by the Guarantors Company or their respective Subsidiaries any Guarantor (other than limited recourse guaranties by OHI secured by Liens permitted pursuant to Section 10.2(x), (iii) on terms and conditions at least as favorable as then prevailing "market terms" and (iv) the proceeds of which are used in Grand Parent's and its Subsidiaries' telecommunications business.
(vi) Provided that the Holders have received a certificate of the chief or principal accounting or financial officer of the Company to the effect that no Default is in existence or would result therefrom, Indebtedness of the Company (including vendor financing) secured on a pari passu basis with the Notes (pursuant to an intercreditor arrangement to be negotiated in good faith and with out unreasonable delay with the Secured Creditors, providing sharing of the proceeds of collateral on a pro rata basis similar to the Intercreditor Agreement, which arrangement shall be satisfactory to the Required Secured Creditors);
(vii) So long as no Default is in existence or would result therefrom, (A) Indebtedness secured in accordance with Section 10.2(vi), (vii) and (viii), as applicable, incurred in the ordinary course acquisition of business but Real Estate capital lease obligations and (B) other purchase money financing, in an aggregate amount (including any refinancing thereof pursuant to clause (x) below) not to exceed [*];
(viii) Intercompany Indebtedness of the Guarantors on the terms and conditions set forth herein;
(ix) Indebtedness of any Non-Party Subsidiary, so long as such Indebtedness is not secured by any of the Collateral, and neither the Company nor any Guarantor has any Contingent Obligations with respect to such Indebtedness; --------------------------------------------------------------------------- * CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SEC
(x) Indebtedness providing for the refinance, refunding, renewal or replacement of Indebtedness incurred through pursuant to clauses (v), (vi) and (vii) above (so long as such Indebtedness could have been incurred under such clauses (v), (vi) and (vii); provided that (i) any such Indebtedness does not exceed the borrowing amount so refinanced, refunded, renewed or replaced plus the amount of moneyany premium, or accrued interest, fees and other related expenses incurred in connection with the consummation of any such Indebtedness, (ii) the obtaining maturity date of credit except for credit on an open account basis customarily extended and in fact extended such Indebtedness is no earlier than the maturity date of such original Indebtedness; (iii) no collateral is used to secure such Indebtedness other than the collateral pledged in connection with normal purchases such original Indebtedness; and (iv) if such refinancing, refunding, renewal or replacement applies to the Company's FCC Indebtedness and is incurred by a lender other than the FCC, such refinancing, refunding, renewal or replacement and any Liens in connection therewith shall not be senior in any respect to the position of goods and services;the Secured Creditors.
(dxi) Indebtedness under the Loan Agreement; and
(xii) Indebtedness in respect of taxesperformance, assessments, governmental charges surety or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(e) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(f) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred appeal bonds provided in the ordinary course of business; and
(g) subject to . For purposes of determining compliance with this Section 10.1, in the provisions event that an item of §9, Indebtedness meets the criteria of more than one of the Borrower or CVOP II in respect types of Derivatives Contracts that are entered into Indebtedness described in the ordinary course above clauses, the Company, in its sole discretion, shall classify such item of business Indebtedness and not for speculative purposes;
(h) subject to the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period only be required to include the quarter in which the Merger is consummated, if applicable, the amount and type of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate one of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreementclauses.
Appears in 1 contract
Restrictions on Indebtedness. The Borrower will not, and will not permit any Guarantor its Subsidiaries or their respective Subsidiaries REIT to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders arising under any of the Loan Documents;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(c) current liabilities of the Borrower, the Guarantors Borrower or their its respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(dc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(ed) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of a Default;
(fe) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(gf) subject to the provisions of §9, Indebtedness (i) Secured Debt of the Borrower or CVOP II in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes;
(h) subject to the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt its Subsidiaries that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) Indebtedness shall not exceed fifteen percent (15.015%) of Gross Asset Value at any time; providedValue, howeverand (ii) Secured Debt of the Borrower and its Subsidiaries, provided that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the aggregate amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse such Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half forty percent (17.540%) during such period;of Gross Asset Value; and
(jg) subject Subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt; and
(k) unsecured Indebtedness of and its Subsidiaries of Borrower, CVOP II or, from and after the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to AgentREIT. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i8.1(f) above shall have be secured by any asset included in the calculation of the Pool Properties Unencumbered Asset Value or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor owning such an asset as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, collateral and (ii) none of the Borrower, the Guarantors or their respective Subsidiaries REIT shall not create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (including, without limitation, pursuant to any conditional or limited guaranty or indemnity agreement creating liability with respect to usual and customary exclusions from the non-recourse limitations governing the Non-Recourse Indebtedness of any Person, or otherwise) other than Indebtedness to the Lenders arising under the Loan Documentsdescribed in §§8.1(a)-(e) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4g) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreementabove.
Appears in 1 contract
Samples: Term Loan Agreement (Dupont Fabros Technology, Inc.)
Restrictions on Indebtedness. The Borrower Borrowers will not, and will not permit any the REIT Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ai) Indebtedness to the Lenders arising under any of the Loan DocumentsDocuments and Hedge Obligations to a Lender Hedge Provider;
(b) Indebtedness to the Lender Hedge Providers in respect of any Hedge Obligations;
(cii) current liabilities of the Borrower, Parent Borrower and the Guarantors or their respective Subsidiaries Subsidiary Credit Parties incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(diii) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(eiv) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(fv) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and;
(gvi) subject Indebtedness incurred to the provisions of §9any other landowners, Indebtedness of the Borrower government or CVOP II in respect of Derivatives Contracts that are entered into quasi-government or entity or similar entity in the ordinary course of business in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and not for speculative purposessimilar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith;
(hvii) subject to Indebtedness of the provisions of §9, NonREIT Guarantor under carve-Recourse Indebtedness that is secured by Real Estate (out guaranties and environmental indemnifications on first mortgage or other than the Pool Properties or interest therein) and property related assetsloans;
(viii) Indebtedness of the REIT Guarantor and certain of their Subsidiaries (but not any Subsidiaries that are Credit Parties) under the Equity Line;
(ix) the REIT Guarantor will not incur any Indebtedness other than (i) subject Indebtedness under guaranties of the REIT Guarantor consisting of carve-out guaranties and environmental indemnifications on first mortgage or other property related loans; (ii) Indebtedness under the Guaranty; and (iii) other Indebtedness (which shall include the amounts outstanding under the Equity Line and recourse guaranties related to the provisions Indebtedness of §9, Secured Debt that is Recourse Indebtedness, Subsidiaries) in an aggregate amount at any one time not in excess of ten percent (10%) of Total Asset Value; provided that the aggregate amount of such Secured Debt limit in this subclause (excluding the Obligations and the Hedge Obligationsiii) shall not exceed increase to fifteen percent (15.015%) of Gross Total Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following from and after the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but when REIT Guarantor shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness have delivered financial statements described in clause §7.4(a) or (ab) above, provided that such Unsecured Debt described in this §8.1(j) may have any evidencing Total Asset Value of the Pool Properties $1,500,000,000 or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debtmore; and
(kx) unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after a Permitted Exchange Property Owner under the Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectivelyapplicable Exchange Loan; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor Exchange Loan shall be subordinate subject to the repayment of the Obligations on terms reasonably acceptable to Agentan Exchange Loan Subordination Agreement. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) 8.1 above shall have any of the Pool Collateral Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor Credit Party as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, Indebtedness (provided that the foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than the Parent Borrower and any Subsidiary Credit Party) to incur Indebtedness described in §8.1(j) may, subject to which would be prohibited by the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower or from and after the Merger, of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor§8.1), may create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness which is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Bluerock Residential Growth REIT, Inc.)
