Restrictions on Indebtedness. None of the Borrowers shall become or be a guarantor or surety of, or otherwise create, incur, assume, 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 Banks and the Agent arising under this Agreement or the Loan Documents; (b) Subject to 8.9, Subordinated Debt in an aggregate outstanding principal amount not to exceed $15,000,000; (c) 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 date hereof, together with any renewals, extensions or refinancings thereof on terms which are not materially different than those in effect as of the date hereof; (d) Current liabilities incurred in the ordinary course of 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; (e) 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 and Indebtedness of the Borrowers secured by liens of carriers, warehousemen, mechanics and materialmen permitted by 8.2; (f) Indebtedness in respect of judgments 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 any 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; (g) Indebtedness of any Borrower with respect to guaranty, suretyship or indemnification obligations in connection with such Borrower's performance of services for its respective customers in the ordinary course of its business; (h) [Intentionally omitted]; (i) Indebtedness of any Subsidiary owing to the Parent; (j) Intercompany Indebtedness among the Subsidiaries; (k) Indebtedness in respect of a 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 Borrowers shall not exceed $10,000,000 at any time; (m) Indebtedness incurred in connection with the acquisition by the Borrowers of real or personal property, including Indebtedness in respect of non-compete payments; provided that 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 of the Borrowers, provided that the aggregate amount of such agreements do not exceed $500,000, the maturity of such agreements do not exceed six (6) months, the terms are consistent with past practices of the Borrowers, and such agreements are entered into with the Agent or any Bank and secured by the Collateral; and (p) Indebtedness in respect of interest rate protection arrangements satisfactory to the Agent entered into with the Agent or any Bank and secured by the Collateral.
Appears in 1 contract
Sources: Revolving Credit Agreement (Casella Waste Systems Inc)
Restrictions on Indebtedness. None The Borrower will not, and will not permit any of the Borrowers shall become or be a guarantor or surety ofits Subsidiaries to, or otherwise create, incur, assume, guarantee or be or remain liable, contingently or otherwiseother wise, 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:
(a1) Indebtedness to the Banks and the Agent Lender arising under this Agreement or any of the Loan Documents;
(b2) Subject to 8.9, Subordinated Debt in an aggregate outstanding principal amount not to exceed $15,000,000;
(c) 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 current liabilities of the date hereof, together with any renewals, extensions Borrower or refinancings thereof on terms which are not materially different than those in effect as of the date hereof;
(d) Current liabilities 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;
(e3) 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 7.8 and Indebtedness of the Borrowers secured by liens of carriers, warehousemen, mechanics and materialmen permitted by 8.2Section 6.8;
(f5) Indebtedness in respect of judgments or awards which 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 any the 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 reservesreview;
(g6) Indebtedness endorsements for collection, deposit or negotiation and warranties of any Borrower with respect to guarantyproducts or services, suretyship or indemnification obligations in connection with such Borrower's performance of services for its respective customers each case incurred in the ordinary course of its business;
(h) [Intentionally omitted];
(i) Indebtedness of any Subsidiary owing to the Parent;
(j) Intercompany Indebtedness among the Subsidiaries;
(k) Indebtedness in respect of a 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 Borrowers shall not exceed $10,000,000 at any time;
(m) Indebtedness incurred in connection with the acquisition by the Borrowers of real or personal property, including Indebtedness in respect of non-compete payments; provided that 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 of the Borrowers, provided that the aggregate amount of such agreements do not exceed $500,000, the maturity of such agreements do not exceed six (6) months, the terms are consistent with past practices of the Borrowers, and such agreements are entered into with the Agent or any Bank and secured by the Collateral; and
(p7) Indebtedness existing on the date of this Agreement and listed and described on SCHEDULE 7.1 hereto.
(8) Other Indebtedness not to exceed One Million Dollars ($1,000,000.00) in respect of interest rate protection arrangements satisfactory to the Agent entered into with the Agent or aggregate at any Bank and secured by the Collateraltime outstanding.
Appears in 1 contract
Sources: Line of Credit Agreement (Toymax International Inc)
Restrictions on Indebtedness. None of the Borrowers shall become Create, incur, suffer or be a guarantor permit to exist, or surety ofassume or guarantee, either directly or indirectly, or otherwise create, incur, assume, or be become or remain liable, contingently or otherwise, liable with respect to 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:except the following: 39
(a) Indebtedness of URC and its Subsidiaries referred to the Banks and the Agent arising under this Agreement or the Loan Documentsin SCHEDULE 5.13;
(b) Subject to 8.9, Subordinated Debt Indebtedness on account of Consolidated Current Liabilities (other than for money borrowed) incurred in an aggregate outstanding principal amount not to exceed $15,000,000the normal and ordinary course of business;
(c) 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 date hereof, together with any renewals, extensions or refinancings thereof on terms which are not materially different than those in effect as of the date hereof;
(d) Current liabilities incurred in the ordinary course of 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;
(e) Indebtedness in respect of (i) taxes, 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 and Indebtedness of the Borrowers secured by liens of carriersSection 8.2 hereof, warehousemen, mechanics and materialmen permitted by 8.2;
(fii) Indebtedness in respect of judgments or awards which have been in force for less than the applicable appeal period for taking an appeal so long as execution is not levied thereunder or in respect of which URC or any Borrower 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 review, and (iii) endorsements made in connection with the deposit of items for credit or collection in the ordinary course of business;
(d) Subordinated Indebtedness;
(e) Guarantees permitted under Section 9.5;
(f) other Indebtedness, so long as on the date URC or any Subsidiary becomes liable with respect to such other Indebtedness and immediately after giving effect thereto and to the concurrent retirement of which the Borrowers have maintained adequate reserves;any other Indebtedness, there shall be no Default hereunder; and
(g) Indebtedness of any Borrower with respect to guaranty, suretyship or indemnification obligations in connection with such Borrower's performance of services for its respective customers in the ordinary course of its business;
(h) [Intentionally omitted];
(i) Indebtedness of any Subsidiary owing to the Parent;
(j) Intercompany Indebtedness among the Subsidiaries;
(k) Indebtedness in respect of a 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 Borrowers shall not exceed $10,000,000 at any time;
(m) Indebtedness incurred in connection with the acquisition by the Borrowers of real or personal property, including Indebtedness in respect of non-compete payments; provided that 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 of the Borrowers, provided that the aggregate amount of such agreements do not exceed $500,000, the maturity of such agreements do not exceed six (6) months, the terms are consistent with past practices of the Borrowers, and such agreements are entered into with the Agent or any Bank and secured by the Collateral; and
(p) Indebtedness in respect of interest rate protection arrangements satisfactory to the Agent entered into with and Banks hereunder and under the Agent or any Notes and the other Bank and secured by the CollateralAgreements.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Uno Restaurant Corp)
Restrictions on Indebtedness. None of the Borrowers shall become or be a guarantor or surety ofwill, or otherwise nor will permit any of its Subsidiaries to, 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 Banks Lenders and the Administrative Agent arising under this Agreement or any of the Loan Documents;
(b) Subject to 8.9endorsements for collection, Subordinated Debt deposit or negotiation and warranties of products or services, in an aggregate outstanding principal amount not to exceed $15,000,000;
(c) 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 date hereof, together with any renewals, extensions or refinancings thereof on terms which are not materially different than those in effect as of the date hereof;
(d) Current liabilities each case incurred in the ordinary course of business not incurred through business;
(c) Subordinated Debt; provided that (i) the borrowing aggregate principal amount of money, or (ii) such Subordinated Debt plus the obtaining aggregate principal amount 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;
(e) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to Subordinated Debt incurred by the extent that payment therefor Parent shall not at the time be required to be made in accordance with the provisions of 7.8 and Indebtedness of the Borrowers secured by liens of carriers, warehousemen, mechanics and materialmen permitted by 8.2;
(f) Indebtedness in respect of judgments 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 any 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;
(g) Indebtedness of any Borrower with respect to guaranty, suretyship or indemnification obligations in connection with such Borrower's performance of services for its respective customers in the ordinary course of its business;
(h) [Intentionally omitted];
(i) Indebtedness of any Subsidiary owing to the Parent;
(j) Intercompany Indebtedness among the Subsidiaries;
(k) Indebtedness in respect of a letter of credit issued by Allbank Bank in the face amount of exceed $168,000; provided that if the Agent, in its sole and absolute discretion, 10,000,000 at any time and for (ii) prior to the incurrence of any reason so requestssuch Subordinated Debt, the Borrowers shall promptly replace have demonstrated pro forma compliance with the covenants set forth in §§11.1 and 11.2 (using Consolidated EBITDA or Consolidated EBITDAR, as the case may be) for the Reference Period most recently ended and projected compliance with all covenants hereunder for the four (4) fiscal quarters following the incurrence of such letter of credit with a Letter of Credit issued by the Agent pursuant Subordinated Debt; and provided, further, such Subordinated Debt (i) shall be expressly subordinated and made junior to the payment and performance in full of the Obligations on terms which are reasonably satisfactory in all respects to the Required Lenders, (ii) shall not contain terms requiring the payment of this Credit Agreementcash interest more frequently than quarterly, (iii) shall bear cash interest at a rate per annum not greater than 13%, and any interest which accrues at a per annum rate in excess of 13% is only required to be paid in kind prior to the Maturity Date, (iv) shall have a final maturity not earlier than one (1) year following the Maturity Date, and (v) shall otherwise contain terms and provisions reasonably satisfactory to the Required Lenders;
(ld) Indebtedness incurred in connection with the acquisition after the date hereof Original Closing Date of any real or personal property by such Borrower or such Subsidiary or under any Capitalized Lease, and any refinancings, renewals and replacements thereof which contain terms no more onerous to the Borrowers under any lease; than the Indebtedness so refinanced, renewed or replaced, provided that the aggregate outstanding principal amount of such Indebtedness (including any such Indebtedness outstanding on the Original Closing Date) of all of the Borrowers and their Subsidiaries shall not exceed the aggregate amount of $10,000,000 3,000,000 at any one time;
(m) Indebtedness incurred in connection with the acquisition by the Borrowers of real or personal property, including Indebtedness in respect of non-compete payments; provided that 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 of the Borrowers, provided that the aggregate amount of such agreements do not exceed $500,000, the maturity of such agreements do not exceed six (6) months, the terms are consistent with past practices of the Borrowers, and such agreements are entered into with the Agent or any Bank and secured by the Collateral; and
(pe) Indebtedness in respect of interest rate protection agreements, swaps or similar arrangements entered into pursuant to §9.15 to protect the Borrowers from changes in interest rates;
(f) Indebtedness not otherwise permitted by this §10.1 existing on the Original Closing Date and listed and described on Schedule 10.1 hereto and any refinancings thereof not to exceed such original principal amount and on terms and conditions substantially similar thereto; and
(g) Indebtedness of a Subsidiary of a Borrower owing to such Borrower and Indebtedness of one Borrower owing to another Borrower; provided that all such intercompany Indebtedness permitted by this §10.1(g), and all instruments (if any) evidencing any thereof, shall be pledged and delivered to the Administrative Agent, for the benefit of the Lenders and the Administrative Agent, as security for the Obligations pursuant to the provisions of the applicable Security Documents, and the Administrative Agent shall have a first priority perfected lien and security interest therein; and provided further that all such intercompany Indebtedness shall be subordinated to the Obligations on terms satisfactory to the Agent entered into with the Agent Administrative Agent;
(h) guarantees by a Borrower or a Subsidiary of a Borrower of Indebtedness otherwise permitted under this §10.1;
(i) Indebtedness consisting of contingent obligations of any Borrower or any Bank of its Subsidiaries to repurchase or otherwise redeem Equity Interests of MS LLC from former employees of MS LLC, a Borrower or any of their Subsidiaries pursuant to the terms of the Equity Documents or other employee compensation plans of the Borrowers and secured by their Subsidiaries and matured obligations to repurchase or otherwise redeem such stock to the Collateralextent such repurchase or redemption is permitted under §10.4(d); and
(j) other unsecured Indebtedness not otherwise permitted hereunder in an aggregate principal amount of $1,000,000, provided that no Default or Event of Default has occurred and is continuing at the time of the incurrence of such unsecured Indebtedness or would result after giving effect thereto.
Appears in 1 contract
Sources: Revolving Credit Agreement (McCormick & Schmick Holdings, L.L.C.)
Restrictions on Indebtedness. None Each Loan Party will not, and will not permit any of the Borrowers shall become or be a guarantor or surety ofits Subsidiaries to, or 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 Banks Lenders and the Administrative Agent arising under this Agreement or any of the Loan Documents;
(b) Subject to 8.9, Subordinated Debt in an aggregate outstanding principal amount not to exceed $15,000,000;
(c) 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 date hereof, together with any renewals, extensions or refinancings thereof on terms which are not materially different than those in effect as of the date hereof;
(d) Current liabilities incurred in the ordinary course of 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;
(e) 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 and Indebtedness of the Borrowers secured by liens of carriers, warehousemen, mechanics and materialmen permitted by 8.2§8.8;
(fc) Indebtedness in respect of judgments or awards which 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 any Borrower the such Loan Party 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 review;
(d) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(e) [reserved];
(f) Indebtedness of the Borrower incurred in connection with the acquisition or lease after the date hereof of any real or personal property by the Borrower or under any Capitalized Leases, provided that (i) the aggregate principal amount of such Indebtedness of the Borrower shall not exceed One Hundred Million Dollars ($100,000,000) outstanding at any one time, (ii) the principal amount of such Indebtedness secured by or relating to the lease of any particular property shall not exceed one hundred percent (100%) of the purchase price of such property, and (iii) the Administrative Agent, the Borrower, and the holder of such other Indebtedness have entered into an intercreditor agreement in accordance with §14.15 with respect to the rights of which the Borrowers have maintained adequate reservessuch creditor groups;
(g) Indebtedness (i) of CAI under the Senior Revolving Credit Facility (which Indebtedness may be increased and/or otherwise varied in amount from time to time as permitted thereunder), (ii) of the Borrower under the CAI Rail Guaranty, so long as the Indebtedness of the Borrower under the CAI Rail Guaranty is not secured by a Lien on any of the Collateral or a Lien on any of the Capital Stock of the Borrower, and (iii) of CAI or Borrower with respect to guaranty, suretyship or indemnification obligations in connection with such Borrower's performance of services for its respective customers in existing on the ordinary course of its businessRestatement Date and listed and described on Schedule 9.1 hereto;
(h) [Intentionally omitted]any renewal or refinancing of any Indebtedness permitted under this §9.1; provided that any such refinancing or renewal does not independently violate any restriction, basket, limitation or other provision of this §9;
(i) Indebtedness of any CAI and its Subsidiaries consisting of short-term trade credit extended to CAI or such Subsidiary owing to in the Parentordinary course of such Person’s business in connection with the acquisition of Equipment; provided that such Indebtedness shall not be in existence for more than 180 days after the occurrence of the transaction giving rise thereto;
(j) Intercompany Indebtedness among the Subsidiariesin respect of Interest Rate Protection Agreements;
(k) Indebtedness in respect consisting of a letter of credit issued Investments permitted 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§9.3(e);
(l) Indebtedness incurred in connection with the acquisition after the date hereof consisting of obligations (contingent or otherwise) of CAI or any personal property by the Borrowers Subsidiary existing or arising under any lease; Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the aggregate ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding principal amount of such Indebtedness of transactions to the Borrowers shall not exceed $10,000,000 at any timedefaulting party;
(m) Indebtedness incurred by a Securitization Entity in connection with a Permitted Securitization; and
(n) other Indebtedness at any time, secured or unsecured; provided that
(i) in the case of Indebtedness incurred by CAI, the Borrower, or any of their respective Subsidiaries that is a Loan Party, both before and immediately after any such Indebtedness is incurred, no Default or Event of Default shall have occurred and be continuing;
(ii) other than with respect to the CAI Rail Guaranty, neither the Borrower nor any Subsidiary of the Borrower shall be a guarantor, co-borrower or co-obligor with respect to any Indebtedness of CAI or any Subsidiary of CAI (other than the Borrower or any Domestic Subsidiary of the Borrower);
(iii) if any Indebtedness incurred by the Borrower or a Domestic Subsidiary of the Borrower (A) is secured and (B) individually or in the aggregate exceeds One Hundred Million Dollars ($100,000,000), then the Administrative Agent, the Borrower, the Domestic Subsidiaries of the Borrower, the holder(s) of such Indebtedness and other interested creditors shall have entered into an intercreditor agreement in accordance with §14.15 with respect to the rights of such creditor groups in the respective collateral pools for this facility and all other facilities; and
(iv) the proceeds of such Indebtedness are used solely for (A) repayments of Revolving Credit Loans pursuant to §3.3, (B) the acquisition of assets and fees, costs and expenses incurred in connection with the acquisition by of assets or (C) for the Borrowers refinancing of real or personal property, including Indebtedness in respect of non-compete payments; provided that the aggregate outstanding principal amount of any 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 of the Borrowers, provided that the aggregate amount of such agreements do not exceed $500,000, the maturity of such agreements do not exceed six (6) months, the terms are consistent with past practices of the Borrowers, and such agreements are entered into with the Agent or any Bank and secured by the Collateral; and
(p) Indebtedness in respect of interest rate protection arrangements satisfactory to the Agent entered into with the Agent or any Bank and secured by the CollateralIndebtedness.
Appears in 1 contract
Sources: Revolving Credit Agreement (CAI International, Inc.)
Restrictions on Indebtedness. None Subject to the other limitations of this Agreement, the Borrowers Borrower shall become or be a guarantor or surety of, or otherwise not create, incur, assume, guarantee or be suffer to exist, or remain liablepermit any of its Subsidiaries to create, incur, assume, guarantee or suffer to exist, 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:than (without duplication):
(a) Indebtedness to the Banks and the Agent arising under this Agreement or the Loan DocumentsLoans;
(b) Subject to 8.9Non-Affiliate Subordinated Debt, Subordinated Debt in an aggregate outstanding principal amount not to exceed $15,000,000[*] in the aggregate;
(c) Existing Indebtedness with respect to loans and capitalized leases listed on Schedule 8.1(c) hereto in an aggregate amount Affiliate Subordinated Debt, not to exceed $7,500,000, on [*] in the terms and conditions in effect as aggregate (of which no more than [*] owing to such Affiliates may require the date hereof, together with any renewals, extensions or refinancings thereof on terms which are not materially different than those in effect as payment of the date hereofcurrent interest);
(d) Current liabilities incurred in the ordinary course of 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 servicesIndebtedness under Permitted Loan Agreements;
(e) Indebtedness in with respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent License Subsidiaries, FCC Debt existing on the Closing Date; and
(i) purchase-money Indebtedness (including not more than [*] for Real Estate); and
(ii) Capital Lease Obligations but only so long as: --------------------------------------------------------------------------- * CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SEC
(A) the aggregate principal amount of Indebtedness under [*] (i) and (ii) above at any one time outstanding does not exceed [*] and
(B) such Indebtedness is in a principal amount that payment therefor shall does not at exceed the time be required to be made in accordance with the provisions of 7.8 and Indebtedness fair market value of the Borrowers secured by liens of carriers, warehousemen, mechanics and materialmen permitted by 8.2;
(f) Indebtedness in respect of judgments property being acquired 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 any 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 reservesleased;
(g) Indebtedness of any Borrower with respect to guaranty, suretyship or indemnification obligations in connection with such Borrower's performance of services for its respective customers in the ordinary course of its businessunder Permitted Hedging Arrangements;
(h) [Intentionally omitted];
(i) Indebtedness the proceeds of any Subsidiary owing to the Parent;
(j) Intercompany Indebtedness among the Subsidiaries;
(k) Indebtedness in respect of a letter of credit issued by Allbank Bank in the face amount of $168,000; provided that if the Agentwhich are used solely for working-capital purposes, in its sole and absolute discretion, at any time and for any reason but only 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 long as the aggregate outstanding principal amount of such Indebtedness of the Borrowers shall outstanding on any date does not exceed $10,000,000 at the lesser of (i) [*] and (ii) an amount equal to [*] determined as of any time;
(m) Indebtedness incurred in connection with the acquisition by the Borrowers of real or personal property, including Indebtedness in respect of non-compete payments; provided that 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 of the Borrowers, provided that the aggregate amount of such agreements do not exceed $500,000, the maturity of such agreements do not exceed six (6) months, the terms are consistent with past practices of the Borrowers, and such agreements are entered into with the Agent or any Bank and secured by the Collateral; and
(pi) Other Indebtedness (in respect addition to Indebtedness described in clauses (a) through (h)) not to exceed [*] in the aggregate outstanding at any one time. Indebtedness to OC or to any of interest rate protection arrangements satisfactory its Subsidiaries shall only be permitted hereunder pursuant to the Agent entered into with the Agent or any Bank and secured by the Collateralthis Section hereof.
Appears in 1 contract
Sources: Loan Agreement (Omnipoint Corp \De\)
Restrictions on Indebtedness. None of the Borrowers shall become Incur or be a guarantor or surety of, or otherwise create, incur, assume, or be permit any majority-controlled subsidiary to incur or remain liableassume, contingently or otherwise, any liability with respect to any IndebtednessIndebtedness for borrowed money that exceeds the aggregate of $800,000 and that is not already included in a budget approved by the Board of Directors, or become or be responsible in any manner including (whether for so long as the holders of Series A Preferred Units are entitled to elect a Series A Director) the Series A Director; provided, however, that the approval 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 the Series A Director of any other Personannual budget that includes such proposed Indebtedness in excess of $800,000 shall not be deemed to be an approval thereof unless such Series A Director has expressly approved such Indebtedness in excess of $800,000; and provided further that, or incur any Indebtedness other than:
(a) Indebtedness to the Banks extent that the Company’s trailing twelve (12) month revenue for any period, calculated in accordance with GAAP applied on a consistent basis, exceeds $10 million (and written evidence of such fact has been provided to the Agent arising Series A Director), the $800,000 limit on Indebtedness hereunder shall be increased to $1.5 million. Notwithstanding the foregoing, (i) all term Indebtedness under this Agreement or the Company’s Senior Loan Documents;
(b) Subject to 8.9Facility, Subordinated Debt in an aggregate outstanding principal amount not to exceed $15,000,000;
6 million in the aggregate, (cii) Existing any Indebtedness with respect to loans and capitalized leases listed on Schedule 8.1(c) hereto in an aggregate amount drawn by the Company under the revolving portion of the Company’s Senior Loan Facility not to exceed $7,500,000300,000 in the aggregate, (iii) any Indebtedness incurred pursuant to Sections 9.02, and (iv) any other Indebtedness existing on the terms and conditions in effect as original issuance date of the date hereofSeries A Preferred Units, together with including, without limitation, Indebtedness evidenced by the Seller Note (collectively, the “Exempt Indebtedness”) shall not be included in the calculation of Indebtedness for purposes of this Section 6.09(a). The Company shall not refinance or materially amend any renewals, extensions or refinancings thereof on terms which are not materially different than those (including consenting to any increase in effect as the interest rate) of the date hereof;
(d) Current liabilities incurred in the ordinary course of 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;
(e) 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 and Indebtedness of the Borrowers secured by liens of carriers, warehousemen, mechanics and materialmen permitted by 8.2;
(f) Indebtedness in respect of judgments 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 any 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;
(g) Indebtedness of any Borrower with respect to guaranty, suretyship or indemnification obligations in connection with such Borrower's performance of services for its respective customers in the ordinary course of its business;
(h) [Intentionally omitted];
(i) Indebtedness of any Subsidiary owing to the Parent;
(j) Intercompany Indebtedness among the Subsidiaries;
(k) Indebtedness in respect of a 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 Borrowers shall not exceed $10,000,000 at any time;
(m) Indebtedness incurred in connection with the acquisition by the Borrowers of real or personal property, including Indebtedness in respect of non-compete payments; provided that 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 of the Borrowers, provided that the aggregate amount of such agreements do not exceed $500,000, the maturity of such agreements do not exceed six (6) months, the terms are consistent with past practices of the Borrowers, and such agreements are entered into with the Agent or any Bank and secured by the Collateral; and
(p) Indebtedness in respect of interest rate protection arrangements satisfactory to the Agent entered into with the Agent or any Bank and secured by the CollateralExempt Indebtedness.
Appears in 1 contract
Restrictions on Indebtedness. None The Borrower will not, and will not permit any of the Borrowers shall become or be a guarantor or surety ofits Subsidiaries to, or 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 Banks Banks, the Agents and the Collateral Agent arising under this Agreement or any of the Loan Documents;
(b) Subject to 8.9, Subordinated Debt in an Indebtedness consisting of the guaranty by the Borrower of rental payment obligations of the Mexican Subsidiary under real property leases so long as the aggregate outstanding principal amount of rental payment obligations so guarantied by the Borrower shall not to exceed $15,000,000200,000 in any fiscal year;
(c) 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 date hereof, together with any renewals, extensions or refinancings thereof on terms which are not materially different than those in effect as of the date hereof;
(d) Current liabilities incurred in the ordinary course of 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;
(e) 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 7.8 and Indebtedness of the Borrowers secured by liens of carriers, warehousemen, mechanics and materialmen permitted by 8.2ss.11.8;
(fd) Indebtedness in respect of judgments or awards which have been not resulting in force for less than the applicable period for taking an appeal Event of Default under ss.
16.1(i) hereof, but only so long as execution is not levied thereunder or in respect on any property the fair market value of which is $250,000 or more in the aggregate or $150,000 or more in any Borrower shall at single instance;
(e) endorsements for collection, deposit or negotiation and warranties of products or services (including without limitation product liability claims), in each case incurred in the time ordinary course of business;
(f) Indebtedness evidenced by the Subordinated Notes (including without limitation any Liquidated Damages (as defined in good faith be prosecuting an appeal or proceedings for review and the Indenture) referred to 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 reservesIndenture);
(g) Indebtedness of obligations under Capitalized Leases not exceeding $1,000,000 in aggregate amount at any Borrower with respect to guaranty, suretyship or indemnification obligations in connection with such Borrower's performance of services for its respective customers in the ordinary course of its businesstime outstanding;
(h) [Intentionally omitted];
(i) Indebtedness of any Subsidiary owing to the Parent;
(j) Intercompany Indebtedness among the Subsidiaries;
(k) Indebtedness in respect of a 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 real or personal property by the Borrowers under any lease; Borrower or such Subsidiary, provided that the aggregate outstanding principal amount of such Indebtedness of the Borrowers Borrower and its Subsidiaries shall not exceed the aggregate amount of $10,000,000 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 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 an aggregate amount for all such Indebtedness of 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 incurred 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 Borrower's currency risk in connection with its purchase of foreign currencies so long as the acquisition by the Borrowers of real or personal property, including Indebtedness Borrower shall not enter into such Hedging Agreements to hedge in respect of non-compete payments; provided that the aggregate outstanding principal amount of such Indebtedness of the Borrowers shall not exceed $15,000,000 at any timeone time in excess of $4,000,000 worth of foreign currencies;
(n) 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 Borrower's commodity risk in connection with its purchase of Precious Metal so long as such Hedging Agreements (i) consist of options or (ii) are entered into with the Gold Agent or any 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 under ss.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) the Acquisitions or (ii) the consolidation of the businesses acquired from the Balfour Sellers or the CJC Sellers pursuant to the 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 money or the obtaining of credit;
(t) Indebtedness consisting of the CH Management Fee and any deferred portion thereof to the extent permitted pursuant to ss.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, bid or advance payment bonds incurred in connection with bids on school ring contracts 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 Lease400,000 outstanding at any time;
(ox) 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 of the BorrowersBorrower and its Subsidiaries other than that permitted elsewhere in this ss.
12.1 in an aggregate principal amount not to exceed (i) at all times prior to January of 1999, provided that the aggregate amount $1,000,000 at any time outstanding and (ii) at all times during and after January of such agreements do not exceed 1999, $500,000, the maturity of such agreements do not exceed six (6) months, the terms are consistent with past practices of the Borrowers, and such agreements are entered into with the Agent or 5,000,000 at any Bank and secured by the Collateraltime outstanding; and
(py) Indebtedness in of the Borrower with respect to that certain Master Lease Agreement, No. 136331, dated as of interest rate protection arrangements satisfactory August 2, 1994, between Town & Country Corporation and Computer Sales International, Inc. not to the Agent entered into with the Agent or any Bank and secured by the Collateralexceed $225,000.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Gold Consignment Agreement (Commemorative Brands Inc)
Restrictions on Indebtedness. None Each Loan Party will not, and will not permit any of the Borrowers shall become or be a guarantor or surety ofits Subsidiaries to, or 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 Banks Lenders and the Administrative Agent arising under this Agreement or any of the Loan Documents;
(b) Subject to 8.9, Subordinated Debt in an aggregate outstanding principal amount not to exceed $15,000,000;
(c) 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 date hereof, together with any renewals, extensions or refinancings thereof on terms which are not materially different than those in effect as of the date hereof;
(d) Current liabilities incurred in the ordinary course of 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;
(e) 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 and Indebtedness of the Borrowers secured by liens of carriers, warehousemen, mechanics and materialmen permitted by 8.2§8.8;
(fc) Indebtedness in respect of judgments or awards which 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 any Borrower the such Loan Party 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 review;
(d) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(e) [reserved];
(f) Indebtedness of the Borrower incurred in connection with the acquisition or lease after the date hereof of any real or personal property by the Borrower or under any Capitalized Leases, provided that (i) the aggregate principal amount of such Indebtedness of the Borrower shall not exceed Fifty Million Dollars ($50,000,000) outstanding at any one time, (ii) the principal amount of such Indebtedness secured by or relating to the lease of any particular property shall not exceed one hundred percent (100%) of the purchase price of such property, and (iii) the Administrative Agent, the Borrower, and the holder of such other Indebtedness have entered into an intercreditor agreement in accordance with §14.15 with respect to the rights of which the Borrowers have maintained adequate reservessuch creditor groups;
(g) Indebtedness (i) of CAI under the Senior Revolving Credit Facility (which Indebtedness may be increased and/or otherwise varied in amount from time to time as permitted thereunder), (ii) of the Borrower under the CAI Rail Guaranty, so long as the Indebtedness of the Borrower under the CAI Rail Guaranty is not secured by a Lien on any of the Collateral or a Lien on any of the Capital Stock of the Borrower, and (iii) of CAI or Borrower with respect to guaranty, suretyship or indemnification obligations in connection with such Borrower's performance of services for its respective customers in existing on the ordinary course of its businessRestatement Date and listed and described on Schedule 9.1 hereto;
(h) [Intentionally omitted]any renewal or refinancing of any Indebtedness permitted under this §9.1; provided that any such refinancing or renewal does not independently violate any restriction, basket, limitation or other provision of this §9;
(i) Indebtedness of any CAI and its Subsidiaries consisting of short-term trade credit extended to CAI or such Subsidiary owing to in the Parentordinary course of such Person’s business in connection with the acquisition of Equipment; provided that such Indebtedness shall not be in existence for more than 180 days after the occurrence of the transaction giving rise thereto;
(j) Intercompany Indebtedness among the Subsidiariesin respect of Interest Rate Protection Agreements;
(k) Indebtedness in respect consisting of a letter of credit issued Investments permitted 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§9.3(e);
(l) Indebtedness incurred in connection with the acquisition after the date hereof consisting of obligations (contingent or otherwise) of CAI or any personal property by the Borrowers Subsidiary existing or arising under any lease; Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the aggregate ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding principal amount of such Indebtedness of transactions to the Borrowers shall not exceed $10,000,000 at any timedefaulting party;
(m) Indebtedness incurred by a Securitization Entity in connection with the acquisition by the Borrowers of real or personal property, including Indebtedness in respect of non-compete paymentsa Permitted Securitization; provided that the aggregate outstanding principal amount of such Indebtedness of the Borrowers shall not exceed $15,000,000 at any time;and
(n) other Indebtedness at any time, secured or unsecured; provided that
(i) in the case of Indebtedness incurred by CAI, the Borrower, or any of their respective Subsidiaries that is a Loan Party, both before and immediately after any such Indebtedness is incurred, no Default or Event of Default shall have occurred and be continuing;
(ii) other than with respect to the CAI Rail Guaranty, neither the Borrower nor any Subsidiary of the Borrower shall be a guarantor, co-borrower or co-obligor with respect to any Indebtedness of CAI or any Subsidiary of CAI (other than the Borrower or any Domestic Subsidiary of the Borrower);
(iii) if any Indebtedness incurred by the Borrower or a Domestic Subsidiary of the Borrower (A) is secured and (B) individually or in the aggregate exceeds Thirty Million Dollars ($30,000,000), then the Administrative Agent, the Borrower, the Domestic Subsidiaries of the Borrower, the holder(s) of such Indebtedness and other interested creditors shall have entered into an aggregate amount not to exceed $10,501,284 payable to Clinton County, New York under and intercreditor agreement 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 §14.15 with respect to fuel purchased in the ordinary course of business of the Borrowers, provided that the aggregate amount rights of such agreements do not exceed $500,000, the maturity of such agreements do not exceed six (6) months, the terms are consistent with past practices of the Borrowers, and such agreements are entered into with the Agent or any Bank and secured by creditor groups in the Collateral; and
(piv) the proceeds of such Indebtedness are used solely for (A) repayments of Revolving Credit Loans pursuant to §3.3, (B) the acquisition of assets and fees, costs and expenses incurred in respect of interest rate protection arrangements satisfactory to the Agent entered into connection with the Agent acquisition of assets or (C) for the refinancing of any Bank and secured by the Collateralsuch Indebtedness.
Appears in 1 contract
Sources: Revolving Credit Agreement (CAI International, Inc.)
Restrictions on Indebtedness. None (a) Subject to the provisions of §9, the Borrowers will not, and will not permit any of their respective Restricted Subsidiaries or any of the Borrowers shall become or be a guarantor or surety ofGuarantors to, or 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:
(ai) Indebtedness to the Banks Lenders arising under any of the Loan Documents and the Agent arising under this Agreement or the Loan DocumentsHedge Obligations;
(bii) Subject to 8.9, Subordinated Debt in an aggregate outstanding principal amount not to exceed $15,000,000[Intentionally omitted];
(c) 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 date hereof, together with any renewals, extensions or refinancings thereof on terms which are not materially different than those in effect as of the date hereof;
(d) Current liabilities incurred in the ordinary course of 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;
(eiii) 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 and Indebtedness of the Borrowers secured by liens of carriers, warehousemen, mechanics and materialmen permitted by 8.2§7.8;
(fiv) Indebtedness in respect of judgments or awards which 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 any the applicable 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 reservesreview;
(gv) Indebtedness endorsements for collection, deposit or negotiation and warranties of any Borrower with respect to guarantyproducts or services, suretyship or indemnification obligations in connection with such Borrower's performance of services for its respective customers each case incurred in the ordinary course of its business;
(hvi) [Intentionally Omitted];
(vii) 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);
(viii) recourse Indebtedness of Borrowers and Guarantors not to exceed $125,000,000.00, which amount may be increased to $200,000,000.00 in the aggregate as a result of construction financing for the Waterway Project if (1) Commercial Company or Land Company or one or more of their respective Restricted Subsidiaries has commenced construction for the Waterway Project, (2) the Waterway Project is at least thirty-five percent (35%) pre-leased pursuant to Third Party Leases prior to commencement of development and at all times thereafter and (3) construction financing secured by the Waterway Project has not been fully repaid (excluding from the foregoing limits the Loans, the Hedge Obligations, the Performance Obligations and Indebtedness under §8.1(a)(i), any construction loans to develop and construct a Build-To-Suit Property pursuant to §8.1(a)(ix), and §8.1(a)(xiv)(A) (but not exceeding $95,000,000.00 with respect to the Conference Center) (but including, without limitation, recourse Indebtedness incurred pursuant to §8.1(a)(xiv)(B), §8.1(a)(xv) or §8.1(a)(xvi) (to the extent a claim has been made pursuant to any guaranty or indemnity described therein)), provided that such Indebtedness does not cause the Borrowers to fail to comply with the financial covenants contained in §9.2 below after recalculating the interest 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 Ratio permitted by §9.1 is not exceeded;
(ix) Indebtedness of the Borrowers and Restricted Subsidiaries under a construction loan for development of a Build-To-Suit Property provided such property is being built by a contractor pursuant to a guaranteed maximum price construction contract;
(x) [Intentionally omitted];
(ixi) [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;
(xiv) Indebtedness secured by the Conference Center (A) that may be recourse to Borrowers and Guarantors and shall not, up to a maximum principal amount of $95,000,000.00, be included as recourse Indebtedness for the purposes of §8.1(a)(viii) above; provided that (B) any readvance, increase or refinancing of such Indebtedness that is recourse to either of Borrowers or Guarantors in excess of $95,000,000.00 in principal amount shall be included as recourse Indebtedness 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) or Indebtedness of its Restricted Subsidiaries permitted under §8.1(a)(xvi); and
(xvi) Indebtedness of the Borrowers or any Subsidiary owing of their Restricted Subsidiaries, provided such Indebtedness:
(A) except with respect to any Indebtedness otherwise permitted under §8.1(a)(viii), is incurred solely to finance:
a. the acquisition of additional undeveloped residential land or undeveloped commercial land to be added to the ParentWoodlands Project;
b. 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 (j) Intercompany Indebtedness among it being agreed that the Subsidiaries;proceeds of a permanent refinancing of such improvements may exceed the amount of the applicable construction loan); or
c. Municipal Utility District Contracts of such Borrower or Restricted Subsidiary; and
(kB) 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, such Indebtedness does not exceed seventy-five percent (75%) of the fair market value (on a stabilized basis as determined by an appraisal acceptable to Agent) of such property; provided that:
a. 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 seventy-five percent (75%) of the fair market value (on a stabilized basis as determined by an appraisal acceptable to Agent) 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
b. with respect to the development of Build-To-Suit Properties, such Indebtedness does not exceed ninety percent (90%) of the fair market value (on a stabilized basis as determined by an appraisal acceptable to Agent) 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 their respective Unrestricted Subsidiaries to create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(i) Indebtedness in respect of a letter of credit issued by Allbank Bank in the face amount of $168,000; provided that if the Agenttaxes, in its sole assessments, governmental charges or levies and absolute discretionclaims for labor, at any time materials 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 supplies to the terms extent that payment therefor shall not at the time be required to be made in accordance with the provisions of this Credit Agreement§7.8 (assuming for the purposes hereof that §7.8 is applicable to Unrestricted Subsidiaries);
(lii) 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 Borrowers shall not exceed $10,000,000 at any time;
(m) Indebtedness incurred in connection with the acquisition by the Borrowers of real or personal property, including Indebtedness in respect of non-compete payments; provided judgments or awards that have been in force for less than the aggregate outstanding principal amount 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 Indebtedness of the Borrowers shall not exceed $15,000,000 at any timeappeal or review;
(niii) Indebtedness endorsements for collection, deposit or negotiation and warranties of products or services, 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 each case incurred in the ordinary course of business of the Borrowers, provided that the aggregate amount of such agreements do not exceed $500,000, the maturity of such agreements do not exceed six (6) months, the terms are consistent with past practices of the Borrowers, and such agreements are entered into with the Agent or any Bank and secured by the Collateral; andbusiness;
(piv) Indebtedness in respect of interest rate protection arrangements satisfactory 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) is incurred solely to finance (1) the acquisition of additional undeveloped residential land or undeveloped commercial land to be added to the Agent entered into 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
(B) with respect to any property on which Vertical Commercial Improvements are constructed, does not exceed seventy-five percent (75%) of the Agent fair market value (on a stabilized basis as determined by an appraisal acceptable to Agent) of such property; provided that (1) with respect to the Speculative Development of Vertical Commercial Improvements on any single parcel of Commercial Land or any Bank Residential Land, if applicable, such Indebtedness incurred for the construction of such Vertical Commercial Improvements does not exceed seventy-five percent (75%) of the fair market value (on a stabilized basis as determined by an appraisal acceptable to Agent) 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 secured development costs to be covered by equity), and (2) with respect to the Collateraldevelopment of Build-To-Suit Properties, such Indebtedness does not exceed ninety percent (90%) of the fair market value (on a stabilized basis as determined by an appraisal acceptable to Agent) 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).
Appears in 1 contract
Restrictions on Indebtedness. None Subject to the other limitations of this Agreement, the Borrowers Borrower shall become or be a guarantor or surety of, or otherwise not create, incur, assume, guarantee or be suffer to exist, or remain liablepermit any of its Subsidiaries to create, incur, assume, guarantee or suffer to exist, 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:than (without duplication):
(a) Indebtedness to the Banks and the Agent arising under this Agreement or the Loan DocumentsLoans;
(b) Subject to 8.9Non-Affiliate Subordinated Debt, Subordinated Debt in an aggregate outstanding principal amount not to exceed $15,000,000200 million in the aggregate;
(c) Existing Indebtedness with respect to loans and capitalized leases listed on Schedule 8.1(c) hereto in an aggregate amount Affiliate Subordinated Debt, not to exceed $7,500,000, on 200 million in the terms and conditions in effect as aggregate (of which no more than $100 million owing to such Affiliates may require the date hereof, together with any renewals, extensions or refinancings thereof on terms which are not materially different than those in effect as payment of the date hereofcurrent interest);
(d) Current liabilities incurred in the ordinary course of 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 servicesIndebtedness under Permitted Loan Agreements;
(e) Indebtedness in with respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent License Subsidiaries, FCC Debt existing on the Closing Date; and
(i) purchase-money Indebtedness (including not more than $5,000,000 for Real Estate); and
(ii) Capital Lease Obligations but only so long as:
(A) the aggregate principal amount of Indebtedness under clauses (i) and (ii) above at any one time outstanding does not exceed $30,000,000 and
(B) such Indebtedness is in a principal amount that payment therefor shall does not at exceed the time be required to be made in accordance with the provisions of 7.8 and Indebtedness fair market value of the Borrowers secured by liens of carriers, warehousemen, mechanics and materialmen permitted by 8.2;
(f) Indebtedness in respect of judgments property being acquired 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 any 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 reservesleased;
(g) Indebtedness of any Borrower with respect to guaranty, suretyship or indemnification obligations in connection with such Borrower's performance of services for its respective customers in the ordinary course of its businessunder Permitted Hedging Arrangements;
(h) [Intentionally omitted];
(i) Indebtedness the proceeds of any Subsidiary owing to the Parent;
(j) Intercompany Indebtedness among the Subsidiaries;
(k) Indebtedness in respect of a letter of credit issued by Allbank Bank in the face amount of $168,000; provided that if the Agentwhich are used solely for working-capital purposes, in its sole and absolute discretion, at any time and for any reason but only 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 long as the aggregate outstanding principal amount of such Indebtedness of the Borrowers shall outstanding on any date does not exceed the lesser of (i) $10,000,000 at 30,000,000 and (ii) an amount equal to two (2) dollars times Total POPs determined as of any time;; and
(mi) Other Indebtedness incurred (in connection with the acquisition by the Borrowers of real or personal property, including addition to Indebtedness described in respect of non-compete payments; provided that the aggregate outstanding principal amount of such Indebtedness of the Borrowers shall not exceed $15,000,000 at any time;
clauses (na) Indebtedness in an aggregate amount through (h)) 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 15,000,000 in the ordinary course aggregate outstanding at any one time. Indebtedness to OC or to any of business of the Borrowers, provided that the aggregate amount of such agreements do not exceed $500,000, the maturity of such agreements do not exceed six (6) months, the terms are consistent with past practices of the Borrowers, and such agreements are entered into with the Agent or any Bank and secured by the Collateral; and
(p) Indebtedness in respect of interest rate protection arrangements satisfactory its Subsidiaries shall only be permitted hereunder pursuant to the Agent entered into with the Agent or any Bank and secured by the Collateralthis Section hereof.
Appears in 1 contract
Sources: Loan Agreement (Omnipoint Corp \De\)
Restrictions on Indebtedness. None The Company will not permit any Operating Subsidiary of the Borrowers shall become or be a guarantor or surety of, or otherwise Company to create, incur, assume, guarantee or be or remain liableliable with respect to, 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) Intercompany Indebtedness to of Operating Subsidiaries of the Banks and the Agent arising under this Agreement or the Loan DocumentsCompany;
(b) Subject to 8.9Indebtedness of Foreign Subsidiaries, Subordinated Debt in an provided that the aggregate outstanding principal amount of such Indebtedness of Foreign Subsidiaries guaranteed by the Company or any Hasbro Company shall not to exceed $15,000,000the aggregate amount of the Foreign Scheduled Facilities;
(c) Existing Subordinated Debt or other long term unsecured Indebtedness with respect having a maturity at least one (1) year after the Final Maturity Date and providing for no payments of principal prior to loans and capitalized leases listed on Schedule 8.1(c) hereto the Final Maturity Date; provided that, in an aggregate amount not to exceed $7,500,000, on the terms and conditions in effect as case of the date hereofincurrence of additional Subordinated Debt or other long term unsecured Indebtedness by such Subsidiary after the Effective Date, together (i) the Company applies the net cash proceeds of such additional Subordinated Debt or other long term unsecured Indebtedness in accordance with any renewals, extensions 2.10(a)(iii) and (ii) no Default or refinancings thereof on terms which are not materially different than those in effect as Event of Default has occurred and is continuing at the time of the date hereofincurrence of such additional Indebtedness or would result after giving effect thereto;
(d) Current liabilities incurred in the ordinary course of 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;
(e) 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 and Indebtedness of the Borrowers secured by liens of carriers, warehousemen, mechanics and materialmen permitted by 8.2;
(f) Indebtedness in respect of judgments 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 any 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;
(g) Indebtedness of any Borrower with respect to guaranty, suretyship or indemnification obligations in connection with such Borrower's performance of services for its respective customers in the ordinary course of its business;
(h) [Intentionally omitted];
(i) Indebtedness of any Subsidiary owing to the Parent;
(j) Intercompany Indebtedness among the Subsidiaries;
(k) Indebtedness in respect of a 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 real or personal property by the Borrowers such Subsidiary or under any lease; Capitalized Lease, provided that the aggregate outstanding principal amount of such Indebtedness of the Borrowers such Subsidiaries shall not exceed the aggregate amount of $10,000,000 at any one time;
(me) Indebtedness incurred to the Banks and the Agent arising under any of the Loan Documents and the "Loan Documents" as such term is defined in the Revolving Credit Agreement;
(f) sales of receivables in connection with the acquisition by the Borrowers of real or personal property, including Indebtedness in respect of non-compete payments; provided that the aggregate outstanding principal amount of such Indebtedness of the Borrowers shall not exceed $15,000,000 at any timeasset dispositions permitted under 10.5.2;
(ng) other Indebtedness existing on the date hereof and described on Schedule 10.1 hereto; and
(h) other Indebtedness in an aggregate principal 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 of the Borrowers, provided that the aggregate amount of such agreements do not exceed $500,000, the maturity of such agreements do not exceed six (6) months, the terms are consistent with past practices of the Borrowers, and such agreements are entered into with the Agent or 25,000,000 outstanding at any Bank and secured by the Collateral; and
(p) Indebtedness in respect of interest rate protection arrangements satisfactory to the Agent entered into with the Agent or any Bank and secured by the Collateraltime.
Appears in 1 contract
Restrictions on Indebtedness. None The Borrower will not, and will not permit any of the Borrowers shall become or be a guarantor or surety ofits Subsidiaries to, or 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 Banks Banks, the Agents and the Collateral Agent arising under this Agreement or any of the Loan Documents;
(b) Subject to 8.9, Subordinated Debt in an Indebtedness consisting of the guaranty by the Borrower of rental payment obligations of the Mexican Subsidiary under real property leases so long as the aggregate outstanding principal amount of rental payment obligations so guarantied by the Borrower shall not to exceed $15,000,000200,000 in any fiscal year;
(c) 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 date hereof, together with any renewals, extensions or refinancings thereof on terms which are not materially different than those in effect as of the date hereof;
(d) Current liabilities incurred in the ordinary course of 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;
(e) 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 7.8 and Indebtedness of the Borrowers secured by liens of carriers, warehousemen, mechanics and materialmen permitted by 8.2ofss.11.8;
(fd) Indebtedness in respect of judgments or awards which have been not resulting in force for less than the applicable period for taking an appeal Event of Default underss.
16.1(i) hereof, but only so long as execution is not levied thereunder or in respect on any property the fair market value of which is $250,000 or more in the aggregate or $150,000 or more in any Borrower shall at single instance;
(e) endorsements for collection, deposit or negotiation and warranties of products or services (including without limitation product liability claims), in each case incurred in the time ordinary course of business;
(f) Indebtedness evidenced by the Subordinated Notes (including without limitation any Liquidated Damages (as defined in good faith be prosecuting an appeal or proceedings for review and the Indenture) referred to 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 reservesIndenture);
(g) Indebtedness of obligations under Capitalized Leases not exceeding $1,000,000 in aggregate amount at any Borrower with respect to guaranty, suretyship or indemnification obligations in connection with such Borrower's performance of services for its respective customers in the ordinary course of its businesstime outstanding;
(h) [Intentionally omitted];
(i) Indebtedness of any Subsidiary owing to the Parent;
(j) Intercompany Indebtedness among the Subsidiaries;
(k) Indebtedness in respect of a 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 real or personal property by the Borrowers under any lease; Borrower or such Subsidiary, provided that the aggregate outstanding principal amount of such Indebtedness of the Borrowers Borrower and its Subsidiaries shall not exceed the aggregate amount of $10,000,000 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 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 an aggregate amount for all such Indebtedness of 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 incurred 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 Borrower's currency risk in connection with its purchase of foreign currencies so long as the acquisition by the Borrowers of real or personal property, including Indebtedness Borrower shall not enter into such Hedging Agreements to hedge in respect of non-compete payments; provided that the aggregate outstanding principal amount of such Indebtedness of the Borrowers shall not exceed $15,000,000 at any timeone time in excess of $4,000,000 worth of foreign currencies;
(n) 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 Borrower's commodity risk in connection with its purchase of Precious Metal so long as such Hedging Agreements (i) consist of options or (ii) are entered into with the Gold Agent or any 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) the Acquisitions or (ii) the consolidation of the businesses acquired from the Balfour Sellers or the CJC Sellers pursuant to the 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 money 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, bid or advance payment bonds incurred in connection with bids on school ring contracts 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 Lease400,000 outstanding at any time;
(ox) 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 of the BorrowersBorrower 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, provided that the aggregate amount $1,000,000 at any time outstanding and (ii) at all times during and after January of such agreements do not exceed 1999, $500,000, the maturity of such agreements do not exceed six (6) months, the terms are consistent with past practices of the Borrowers, and such agreements are entered into with the Agent or 5,000,000 at any Bank and secured by the Collateraltime outstanding; and
(py) Indebtedness in of the Borrower with respect to that certain Master Lease Agreement, No. 136331, dated as of interest rate protection arrangements satisfactory August 2, 1994, between Town & Country Corporation and Computer Sales International, Inc. not to the Agent entered into with the Agent or any Bank and secured by the Collateralexceed $225,000.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Gold Consignment Agreement (Commemorative Brands Inc)
Restrictions on Indebtedness. None of the Borrowers shall become Create, incur, suffer or be a guarantor permit to exist, or surety ofassume or guarantee, either directly or indirectly, or otherwise create, incur, assume, or be become or remain liable, contingently or otherwise, liable with respect to 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 thanexcept the following:
(a) Indebtedness to outstanding at the Banks and the Agent arising under date of this Agreement or the Loan Documents;as set forth on Schedule 5.16 but no refinancings thereof.
(b) Subject to 8.9, Subordinated Debt Indebtedness on account of Consolidated Current Liabilities (other than for money borrowed) incurred in an aggregate outstanding principal amount not to exceed $15,000,000;the normal and ordinary course of business.
(c) 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 date hereof, together with any renewals, extensions or refinancings thereof on terms which are not materially different than those in effect as of the date hereof;
(d) Current liabilities incurred in the ordinary course of 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;
(e) Indebtedness in respect of (i) taxes, 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 and Indebtedness of the Borrowers secured by liens of carriersSection 8.2 hereof, warehousemen, mechanics and materialmen permitted by 8.2;
(fii) Indebtedness in respect of judgments or awards for an amount in excess of $250,000 which have been in force for less than the applicable appeal period for taking an appeal so long as execution is not levied thereunder or and in respect of which the Borrower or any Borrower Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review in a manner satisfactory to the Lenders and in respect of which a stay of execution shall have been obtained pending such appeal or review and for which adequate reserves have been established in accordance with generally accepted accounting principles, and (iii) endorsements made in connection with the deposit of items for credit or collection in the ordinary course of business.
(d) Indebtedness in an amount not to exceed $2,000,000 in the aggregate with respect of which to equipment financing, Capitalized Leases, and purchase money security interests or as otherwise approved by the Borrowers have maintained adequate reserves;Agent.
(e) Indebtedness to the Lenders.
(f) Guarantees permitted under Section 9.5 hereof.
(g) Indebtedness of between the Borrower and any Borrower with respect to guaranty, suretyship Subsidiary Guarantor or indemnification obligations in connection with such Borrower's performance of services for its respective customers in the ordinary course of its business;between Subsidiary Guarantors.
(h) [Intentionally omitted];
(i) Indebtedness of any Subsidiary owing In addition to the Parent;
Indebtedness described in Section 9.1(a) through (jg) Intercompany above, unsecured Indebtedness among the Subsidiaries;
(k) Indebtedness in respect of a 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 Borrowers shall not exceed $10,000,000 at any time;
(m) Indebtedness incurred in connection with the acquisition by the Borrowers of real or personal property, including Indebtedness in respect of non-compete payments; provided that 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 of the Borrowers, provided that the aggregate amount of such agreements do not exceed $500,000, the maturity of such agreements do not exceed six (6) months, the terms are consistent with past practices of the Borrowers, and such agreements are entered into with the Agent or any Bank and secured by the Collateral; and
(p) Indebtedness in respect of interest rate protection arrangements satisfactory to the Agent entered into with the Agent or any Bank and secured by the Collateral5,000,000.
Appears in 1 contract
Sources: Credit Agreement (Saucony Inc)
Restrictions on Indebtedness. None The Borrower will not, and will not permit any of the Borrowers shall become or be a guarantor or surety ofits Subsidiaries to, or 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:
(a1) Indebtedness to the Banks and the Agent Lender arising under this Agreement or any of the Loan Documents;
(b2) Subject to 8.9, Subordinated Debt in an aggregate outstanding principal amount not to exceed $15,000,000;
(c) 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 current liabilities of the date hereof, together with any renewals, extensions Borrower or refinancings thereof on terms which are not materially different than those in effect as of the date hereof;
(d) Current liabilities 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;
(e3) 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 and Indebtedness of the Borrowers secured by liens of carriers, warehousemen, mechanics and materialmen permitted by 8.2ss.6.8;
(f4) Indebtedness in respect of judgments or awards which 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 any the 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 reservesreview;
(g5) Indebtedness endorsements for collection, deposit or negotiation and warranties of any Borrower with respect to guarantyproducts or services, suretyship or indemnification obligations in connection with such Borrower's performance of services for its respective customers each case incurred in the ordinary course of its business;; and
(h6) [Intentionally omitted];Indebtedness existing on the date of this Agreement and listed and described on Schedule 7.1 hereto; and
(i7) Indebtedness or commitments to incur any Indebtedness not in excess of $200,000.00 in any Subsidiary owing to fiscal year for Capital Expenditures in accordance with the Parent;provisions of ss.8.5 below; and
(j) Intercompany Indebtedness among the Subsidiaries;8) Subordinated Indebtedness; and
(k9) Indebtedness in respect to finance the acquisition of a letter of credit issued by Allbank Bank in the face amount of $168,000; Equipment leases and conditional sales contracts, 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 Borrowers shall not exceed $10,000,000 50,000.00 in the aggregate outstanding at any time;
(m) Indebtedness incurred in connection with the acquisition by the Borrowers of real or personal property, including Indebtedness in respect of non-compete payments; provided that 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 of the Borrowers, provided that the aggregate amount of such agreements do not exceed $500,000, the maturity of such agreements do not exceed six (6) months, the terms are consistent with past practices of the Borrowers, and such agreements are entered into with the Agent or any Bank and secured by the Collateral; and
(p) Indebtedness in respect of interest rate protection arrangements satisfactory to the Agent entered into with the Agent or any Bank and secured by the Collateral.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Microfluidics International Corp)
Restrictions on Indebtedness. None Each Loan Party will not, and will not permit any of the Borrowers shall become or be a guarantor or surety ofits Subsidiaries to, or 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 Banks Lenders and the Administrative Agent arising under this Agreement or any of the Loan Documents;
(b) Subject to 8.9, Subordinated Debt in an aggregate outstanding principal amount not to exceed $15,000,000;
(c) 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 date hereof, together with any renewals, extensions or refinancings thereof on terms which are not materially different than those in effect as of the date hereof;
(d) Current liabilities incurred in the ordinary course of 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;
(e) 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 and Indebtedness of the Borrowers secured by liens of carriers, warehousemen, mechanics and materialmen permitted by 8.2§8.8;
(fc) Indebtedness in respect of judgments or awards which 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 any Borrower the such Loan Party 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 review;
(d) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(e) [reserved];
(f) Indebtedness of the Borrower incurred in connection with the acquisition or lease after the date hereof of any real or personal property by the Borrower or under any Capitalized Leases, provided that (i) the aggregate principal amount of such Indebtedness of the Borrower shall not exceed Twenty-Five Million Dollars ($25,000,000) outstanding at any one time, (ii) the principal amount of such Indebtedness secured by or relating to the lease of any particular property shall not exceed one hundred percent (100%) of the purchase price of such property and (iii) the Administrative Agent and the holder of such other Indebtedness have entered into an intercreditor agreement acceptable to the Administrative Agent with respect to the rights of which the Borrowers have maintained adequate reservessuch creditor groups in such acquired real or personal property;
(g) Indebtedness of any Borrower with respect CAI under the Senior Revolving Credit Facility (which Indebtedness may vary in amount from time to guaranty, suretyship or indemnification obligations in connection with such Borrower's performance of services for its respective customers in time as permitted thereunder) and other Indebtedness existing on the ordinary course of its businessdate hereof and listed and described on Schedule 9.1 hereto;
(h) [Intentionally omitted]any renewal or refinancing of any Indebtedness permitted under this §9.1;
(i) Indebtedness of any CAI and its Subsidiaries consisting of short-term trade credit extended to CAI or such Subsidiary owing to in the Parentordinary course of such Person’s business in connection with the acquisition of Equipment; provided that such Indebtedness shall not be in existence for more than 180 days after the occurrence of the transaction giving rise thereto;
(j) Intercompany Indebtedness among the Subsidiariesin respect of Interest Rate Protection Agreements;
(k) Indebtedness in respect consisting of a letter of credit issued Investments permitted 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§9.3(e);
(l) Indebtedness incurred in connection with the acquisition after the date hereof consisting of obligations (contingent or otherwise) of CAI or any personal property by the Borrowers Subsidiary existing or arising under any lease; Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the aggregate ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding principal amount of such Indebtedness of transactions to the Borrowers shall not exceed $10,000,000 at any timedefaulting party;
(m) Indebtedness incurred by a Securitization Entity in connection with the acquisition by the Borrowers of real or personal property, including Indebtedness in respect of non-compete paymentsa Permitted Securitization; provided that the aggregate outstanding principal amount of such Indebtedness of the Borrowers shall not exceed $15,000,000 at any time;and
(n) other Indebtedness at any time; provided that (i) in the case of Indebtedness incurred by either or both of CAI and the Borrower, both before and immediately after any such Indebtedness is incurred, no Default or Event of Default shall have occurred and be continuing; and (ii) if any such Indebtedness is incurred by the Borrower or a Domestic Subsidiary of the Borrower and such Indebtedness (A) is secured and (B) individually or in the aggregate exceeds Thirty Million Dollars ($30,000,000), then the Administrative Agent and the holder(s) of such Indebtedness in excess of such amount referenced in this subclause (B) have entered into an aggregate amount not intercreditor agreement acceptable 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 Administrative Agent with respect to fuel purchased in the ordinary course of business of the Borrowers, provided that the aggregate amount rights of such agreements do not exceed $500,000, the maturity of such agreements do not exceed six (6) months, the terms are consistent with past practices of the Borrowers, and such agreements are entered into with the Agent or any Bank and secured by the Collateral; and
(p) Indebtedness creditor groups in respect of interest rate protection arrangements satisfactory to the Agent entered into with the Agent or any Bank and secured by the Collateral.
Appears in 1 contract
Sources: Revolving Credit Agreement (CAI International, Inc.)
Restrictions on Indebtedness. None of the Borrowers shall become The Borrower will not, and will not permit any Guarantor or be a guarantor or surety oftheir respective Subsidiaries to, or 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 Banks and the Agent Lenders arising under this Agreement or any of the Loan Documents;
(b) Subject to 8.9, Subordinated Debt in an aggregate outstanding principal amount not to exceed $15,000,000;
(c) 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 current liabilities of the date hereofBorrower, together with any renewals, extensions the Guarantor or refinancings thereof on terms which are not materially different than those in effect as of the date hereof;
(d) Current liabilities 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;
(ec) 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 and Indebtedness of the Borrowers secured by liens of carriers, warehousemen, mechanics and materialmen permitted by 8.2§7.8;
(fd) Indebtedness in respect of judgments or awards which have been only to the extent, for the period and for an amount not resulting in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect Event of which any 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 reservesDefault;
(ge) Indebtedness endorsements for collection, deposit or negotiation and warranties of any Borrower with respect to guarantyproducts or services, suretyship or indemnification obligations in connection with such Borrower's performance of services for its respective customers each case incurred in the ordinary course of its business;; and
(hf) [Intentionally omitted];
(i) Indebtedness of any Subsidiary owing subject to the Parent;
(j) Intercompany Indebtedness among the Subsidiaries;
(k) provisions of §9, Indebtedness in respect of a letter of credit issued by Allbank Bank in the face amount of $168,000; provided Derivatives Contracts 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 Borrowers shall not exceed $10,000,000 at any time;
(m) Indebtedness incurred in connection with the acquisition by the Borrowers of real or personal property, including Indebtedness in respect of non-compete payments; provided that 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 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 Borrowersaggregate at any one time;
(h) subject to the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such agreements do Indebtedness (excluding the Obligations) shall not exceed $500,000, the maturity ten percent (10%) of such agreements do not exceed six (6) months, the terms are consistent with past practices of the Borrowers, and such agreements are entered into with the Agent or any Bank and secured by the CollateralGross Asset Value; and
(pj) unsecured Indebtedness in respect of interest rate protection arrangements satisfactory Subsidiaries of Borrower to Borrower; provided that any such Indebtedness of a Subsidiary of Borrower that is a Guarantor shall be subordinate to the Agent entered into repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, 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 Agent 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 Bank and secured by the CollateralSubsidiary or Unconsolidated Affiliate of such Person or (y) any Unsecured Debt other than Indebtedness permitted under clauses (b)-(g) of this §8.1.
Appears in 1 contract
Restrictions on Indebtedness. None of the Borrowers shall become or be a guarantor or surety of, or otherwise The Borrower will not 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 Banks and the Agent Lender arising under this Agreement or any of the Loan Documents;
(b) Subject to 8.9, Subordinated Debt in an aggregate outstanding principal amount not to exceed $15,000,000;
(c) 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 Current liabilities of the date hereof, together with any renewals, extensions or refinancings thereof on terms which are not materially different than those in effect as of the date hereof;
(d) Current liabilities Borrower incurred in the ordinary course of 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;
(ec) 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 and Indebtedness of the Borrowers secured by liens of carriers, warehousemen, mechanics and materialmen permitted by 8.2[SECTION]7.8;
(fd) Indebtedness in respect of judgments or awards which 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 any the 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 review;
(e) 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 which the Borrowers have maintained adequate reservesPlayer Contracts or Coach Services Contracts;
(g) Indebtedness of any Borrower with respect to guaranty, suretyship or indemnification obligations in connection with such Borrower's performance of services for its respective customers in the ordinary course of its businessTicket refunds payable;
(h) [Intentionally omitted];Capitalized Leases as determined in accordance with generally accepted accounting principles and purchase money financing of equipment in an aggregate amount at any time outstanding not to exceed $500,000; and
(i) Indebtedness of any Subsidiary owing to the Parent;
(j) Intercompany Indebtedness among Borrower consisting of its obligations as a partner or member of the Subsidiaries;
(k) Indebtedness NBA other than obligations in respect of a 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 Borrowers shall not exceed $10,000,000 at any time;
(m) Indebtedness incurred in connection with the acquisition by the Borrowers of real or personal property, including Indebtedness in respect of non-compete payments; provided that 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 of the Borrowers, provided that the aggregate amount of such agreements do not exceed $500,000, the maturity of such agreements do not exceed six (6) months, the terms are consistent with past practices of the Borrowers, and such agreements are entered into with the Agent or any Bank and secured by the Collateral; and
(p) Indebtedness in respect of interest rate protection arrangements satisfactory to the Agent entered into with the Agent or any Bank and secured by the Collateralborrowed money.
Appears in 1 contract
Sources: Credit Agreement (Boston Celtics Limited Partnership)
Restrictions on Indebtedness. None The Borrower will not, and will not permit any of the Borrowers shall become or be a guarantor or surety ofits Subsidiaries to, or 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 Banks and the Agent arising under this Agreement or any of the Loan Documents;
(b) Subject to 8.9endorsements for collection, Subordinated Debt deposit or negotiation and warranties of products or services, in an aggregate outstanding principal amount not to exceed $15,000,000;
(c) 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 date hereof, together with any renewals, extensions or refinancings thereof on terms which are not materially different than those in effect as of the date hereof;
(d) Current liabilities each case incurred in the ordinary course of 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;
(e) 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 and Indebtedness of the Borrowers secured by liens of carriers, warehousemen, mechanics and materialmen permitted by 8.2;
(f) Indebtedness in respect of judgments 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 any 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;
(g) Indebtedness of any Borrower with respect to guaranty, suretyship or indemnification obligations in connection with such Borrower's performance of services for its respective customers in the ordinary course of its business;
(h) [Intentionally omitted];
(i) Indebtedness of any Subsidiary owing to the Parent;
(j) Intercompany Indebtedness among the Subsidiaries;
(k) Indebtedness in respect of a 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;
(lc) Indebtedness incurred in connection with the acquisition after the date hereof of any real or personal property by the Borrowers Borrower or such Subsidiary or under any lease; Capitalized Lease, or Indebtedness incurred by any Subsidiary for working capital purposes, provided that the aggregate outstanding principal amount of such Indebtedness of the Borrowers Borrower and its Subsidiaries shall not exceed the aggregate amount of $10,000,000 7,500,000 at any one time;
(md) Indebtedness incurred in connection with existing on the acquisition by date hereof and listed and described on Schedule 10.1 hereto;
(e) Indebtedness of a Guarantor to the Borrowers of real Borrower or personal property, including Indebtedness in respect of non-compete payments; provided that the aggregate outstanding principal amount of such another Guarantor and Indebtedness of the Borrowers shall not exceed $15,000,000 at Borrower to any timeGuarantor;
(nf) unsecured Indebtedness of any Foreign Subsidiary to the Borrower provided (i) no Default or Event of Default has occurred and is continuing or would exist as a result thereof; and (ii) such Indebtedness is evidenced by an intercompany note in form and substance acceptable to the Agent, and such note is pledged by the Borrower to the Agent to secure the Borrower's Obligations hereunder; and
(g) Indebtedness of a Foreign Subsidiary not otherwise provided for 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 of the Borrowersthis §10.1, provided that the aggregate principal amount of all such agreements do Indebtedness for all Foreign Subsidiaries shall not exceed at any one time an amount equal to $500,000, the maturity of such agreements do not exceed six (6) months, the terms are consistent with past practices of the Borrowers, and such agreements are entered into with the Agent or any Bank and secured by the Collateral; and
(p) Indebtedness in respect of interest rate protection arrangements satisfactory to the Agent entered into with the Agent or any Bank and secured by the Collateral5,000,000.
Appears in 1 contract
Restrictions on Indebtedness. None The Borrower will not, and will not permit ----------------------------- any of the Borrowers shall become or be a guarantor or surety ofits Subsidiaries to, or 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 Banks and the Agent arising under this Agreement or any of the Loan Documents;
(b) Subject to 8.9, Subordinated Debt Indebtedness in an aggregate outstanding principal amount not to exceed $15,000,000respect of long term supply contracts consistent with industry practices;
(c) 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 date hereof, together with any renewals, extensions or refinancings thereof on terms which are not materially different than those in effect as of the date hereof;
(d) Current liabilities incurred in the ordinary course of 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;
(e) 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 and Indebtedness of the Borrowers secured by liens of carriers, warehousemen, mechanics and materialmen permitted by 8.2(S)11.8;
(fd) Indebtedness in respect of judgments or awards which 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 any 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 review;
(e) endorsements for collection, deposit or negotiation and warranties of products or services, in respect each case incurred in the ordinary course of business;
(f) Indebtedness evidenced by the Old Notes and by the guaranty thereof by Petro Distributing, the Warrants and additional Old Notes which may be issued upon exchange of the Borrowers have maintained adequate reservesWarrants in accordance with the terms thereof and Indebtedness evidenced by the New Notes (including without limitation any guaranties of such New Notes by the Subsidiaries);
(g) obligations of the Borrower under Capitalized Leases; provided that -------- the aggregate principal amount of all such Indebtedness of the Borrower and its Subsidiaries permitted pursuant to this (S)12.1(g) shall not exceed the aggregate amount of $2,000,000 at any Borrower with respect to guaranty, suretyship or indemnification obligations in connection with such Borrower's performance of services for its respective customers in the ordinary course of its businessone time;
(h) [Intentionally omitted]Indebtedness existing on the date hereof and listed and described on Schedule 12.1 hereto, including the remaining unamortized portion of the -------- ---- original issue discount of such Indebtedness;
(i) Indebtedness of any a Subsidiary owing of the Borrower existing on the Closing Date to the Parent;
(j) Intercompany Indebtedness among the Subsidiaries;
(k) Indebtedness in respect of a 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 leaseBorrower or another Subsidiary; provided that the aggregate outstanding principal amount of such Indebtedness of the Borrowers shall not exceed $10,000,000 at any time;
(m) Indebtedness incurred same are -------- evidenced by promissory notes, leases or contracts in connection with the acquisition by the Borrowers of real or personal property, including Indebtedness in respect of non-compete payments; provided that 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 form 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 of the Borrowers, provided that the aggregate amount of such agreements do not exceed $500,000, the maturity of such agreements do not exceed six (6) months, the terms are consistent with past practices of the Borrowers, and such agreements are entered into with the Agent or any Bank and secured by the Collateral; and
(p) Indebtedness in respect of interest rate protection arrangements substance satisfactory to the Agent entered into with which are pledged to the Agent or any Bank and secured by for the Collateral.benefit of the Banks;
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Petro Stopping Centers L P)
Restrictions on Indebtedness. None of the Borrowers shall become The Borrower will not, and will not permit any Guarantor or be a guarantor or surety oftheir respective Subsidiaries to, or 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 Banks and the Agent Lenders arising under this Agreement or any of the Loan Documents;
(b) Subject to 8.9, Subordinated Debt in an aggregate outstanding principal amount not to exceed $15,000,000;
(c) 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 current liabilities of the date hereofBorrower, together with any renewals, extensions the Guarantor or refinancings thereof on terms which are not materially different than those in effect as of the date hereof;
(d) Current liabilities 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;
(ec) 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 and Indebtedness of the Borrowers secured by liens of carriers, warehousemen, mechanics and materialmen permitted by 8.2§7.8;
(fd) Indebtedness in respect of judgments or awards which have been only to the extent, for the period and for an amount not resulting 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 any 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 reservesDefault;
(ge) Indebtedness endorsements for collection, deposit or negotiation and warranties of any Borrower with respect to guarantyproducts or services, suretyship or indemnification obligations in connection with such Borrower's performance of services for its respective customers each case incurred in the ordinary course of its business;; and
(f) Indebtedness pursuant to the loans and agreements listed on Schedule 8.1(f) and any refinancings, refundings, renewals or extensions thereof (without any increase in the principal amount thereof or any shortening of the maturity of any principal amount thereof and so long as such continues to remain Non-Recourse Indebtedness); and
(g) Excluded Affiliate Debt; and
(h) [Intentionally omitted];
(i) Indebtedness of any Subsidiary owing with respect to the Parent;
(j) Intercompany Indebtedness among the Subsidiaries;
(k) Indebtedness in respect of a letter of credit issued by Allbank Bank in the face amount of $168,000; provided that if the Agent, in its sole Real Estate acquired from 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 hereof, Non-Recourse Indebtedness of the Borrowers shall not exceed $10,000,000 at Subsidiaries of Borrower secured by Real Estate or Equity Interests under Senior Loan Documents and any time;
refinancings, refundings, renewals or extensions thereof (m) Indebtedness incurred without any increase in connection with the acquisition by the Borrowers of real or personal property, including Indebtedness in respect of non-compete payments; provided that the aggregate outstanding principal amount thereof or any shortening 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 of the Borrowers, provided that the aggregate amount of such agreements do not exceed $500,000, the maturity of such agreements do not exceed six (6) months, the terms are consistent with past practices of the Borrowers, and such agreements are entered into with the Agent or any Bank and secured by the Collateral; and
(p) Indebtedness in respect of interest rate protection arrangements satisfactory to the Agent entered into with the Agent or any Bank and secured by the Collateralprincipal amount thereof).
Appears in 1 contract
Sources: Credit Agreement (Pacific Office Properties Trust, Inc.)
Restrictions on Indebtedness. None of the Borrowers shall become or be a guarantor or surety of, or otherwise create, Credit Parties nor any of its Subsidiaries will 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 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 Banks and Credit Parties consisting of the Agent arising Obligations under this Agreement or the Loan Documents;
(b) Subject to 8.9, Subordinated Debt in an aggregate outstanding principal amount not to exceed $15,000,000;
(c) 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 date hereof, together with any renewals, extensions or refinancings thereof on terms which are not materially different than those in effect as of the date hereof;[Reserved]
(d) Current Indebtedness in respect of Swap Contracts entered into not for speculative purposes in the ordinary course of business;
(e) unsecured Subordinated Debt incurred after the Closing Date on terms and conditions acceptable to the Administrative Agent in its sole discretion, provided that (i) the maturity date of such Subordinated Debt shall be at least one hundred and 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 exceed $2,000,000;
(f) Indebtedness 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 as a result of the fair and reasonable allocation of overhead and administrative expenses among the Credit Parties so long as consistent with the Accepted Allocation Methodology then in effect;
(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, performance bonds and similar instruments incurred in the ordinary course of business;
(i) unsecured 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; provided, however, that such Indebtedness is (A) extinguished within three (3) Business Days of the incurrence thereof, and (B) incurred in the ordinary course of business not incurred through (i) the borrowing in respect of moneypooled accounts and similar arrangements, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended each case, in connection with normal purchases of goods cash management and services;
(e) 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 and Indebtedness of the Borrowers secured by liens of carriers, warehousemen, mechanics and materialmen permitted by 8.2;
(f) Indebtedness in respect of judgments 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 any 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;
(g) Indebtedness of any Borrower with respect to guaranty, suretyship or indemnification obligations in connection with such Borrower's performance of services for its respective customers deposit accounts in the ordinary course of its business;
(h) [Intentionally omitted];
, provided further that any Indebtedness arising under this clause (i) Indebtedness of any Subsidiary owing to the Parent;shall not exceed $100,000; DB1/ 85911004.13
(j) Intercompany Indebtedness among incurred in the Subsidiariesordinary 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) Indebtedness to the extent constituting Indebtedness, obligations in respect of a letter agreements for the deferred payment of credit issued premiums or to finance the deferred payment of premiums owing by Allbank Bank any Credit Party under any insurance policies entered into in the face amount ordinary course of $168,000; provided business 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 are either (i) unsecured or (ii) secured by a Letter of Credit issued by the Agent pursuant to the terms of this Credit AgreementLien permitted under Section 7.03(a)(xi);
(l) Indebtedness incurred in connection with that may be deemed to exist under the acquisition after the date hereof of agreements relating to any personal property by the Borrowers under any lease; provided that the aggregate outstanding principal amount of such Indebtedness Permitted Acquisition as a result of the Borrowers shall not exceed $10,000,000 at any timeobligation of the applicable Credit Party to pay indemnification, contingent purchase price payments or other purchase price adjustments or similar obligations and subject to the limitations as to amounts set forth in the definition of Permitted Acquisition;
(m) Indebtedness incurred under unsecured seller financing in connection with a Permitted Acquisition to the acquisition by extent permitted under Section 7.01(i) and subject to the Borrowers limitations as to amounts set forth in the definition of real or personal property, including Indebtedness in respect of non-compete paymentsPermitted Acquisition; provided that the aggregate outstanding principal amount of any such Indebtedness of shall be subordinated to the Borrowers shall not exceed $15,000,000 at any timeObligations in a manner satisfactory to the Administrative Agent and otherwise contain terms, conditions and amounts reasonably satisfactory to the Administrative Agent;
(n) Indebtedness that may be deemed to exist in connection with Investments permitted pursuant to Section 7.01(c) or (d); and
(o) other unsecured Indebtedness in an aggregate principal 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 of the Borrowers, provided that the aggregate amount of such agreements do not exceed $500,000, the maturity of such agreements do not exceed six (6) months, the terms are consistent with past practices of the Borrowers, and such agreements are entered into with the Agent or 250,000 at any Bank and secured by the Collateral; and
(p) Indebtedness in respect of interest rate protection arrangements satisfactory to the Agent entered into with the Agent or any Bank and secured by the Collateraltime outstanding.
Appears in 1 contract
Sources: Credit Agreement (Intersections Inc)
Restrictions on Indebtedness. None The Company will not permit any of its Subsidiaries (other than the Borrowers shall become or be a guarantor or surety of, or otherwise Guarantor) to create, incur, assume, or be or remain liable, contingently or otherwise, with respect to any Indebtedness, or to 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 Indebtedness, in each case, of any other PersonPerson other than any Borrower or any of its Subsidiaries, or incur any Indebtedness other than:
(a) Indebtedness listed in Schedule 8.1(a), any extension, renewal or refinancing of such Indebtedness and any additional bonds issued and Capital Leases entered into from time to time after the Banks and the Agent arising under this Agreement Effective Date; provided that (i) if such Indebtedness is an extension, renewal or the Loan Documents;
(b) Subject to 8.9refinancing of existing Indebtedness, Subordinated Debt in an aggregate outstanding principal amount not to exceed $15,000,000;
(c) 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 any such extensions, renewals or refinancings shall not increase the relative priority of such Indebtedness over the priority of the date hereoforiginal Indebtedness, together with any renewals, extensions or refinancings thereof on terms which are not materially different than those in effect as of the date hereof;
(d) Current liabilities incurred in the ordinary course of business not incurred through (i) the borrowing of money, or and (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;
(e) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor no event shall not at the time be required to be made in accordance with the provisions of 7.8 and Indebtedness of the Borrowers secured by liens of carriers, warehousemen, mechanics and materialmen permitted by 8.2;
(f) Indebtedness in respect of judgments 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 any 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;
(g) Indebtedness of any Borrower with respect to guaranty, suretyship or indemnification obligations in connection with such Borrower's performance of services for its respective customers in the ordinary course of its business;
(h) [Intentionally omitted];
(i) Indebtedness of any Subsidiary owing to the Parent;
(j) Intercompany Indebtedness among the Subsidiaries;
(k) Indebtedness in respect of a 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 permitted by this §8.1(a) exceed the aggregate principal amount of the Borrowers shall not exceed $10,000,000 at any time;Indebtedness listed on Schedule 8.1(a) that is outstanding on the Effective Date (plus transaction costs, including premiums and fees, related thereto); and
(mb) Indebtedness incurred in connection with the acquisition by the Borrowers of real or personal property, including Indebtedness in respect of non-compete paymentsother Indebtedness; provided that the sum (without duplication) of (i) the aggregate outstanding principal amount of such Indebtedness permitted under this §8.1(b), plus (ii) the aggregate outstanding principal amount of secured Indebtedness of the Borrowers shall not exceed $15,000,000 at any time;
Company and its Subsidiaries permitted under subsections (nk), (l) Indebtedness in an aggregate amount not and (m) of the definition of “Permitted Liens”, plus (iii) the ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ with respect to exceed $10,501,284 payable to Clinton County, New York under and outstanding Permitted Receivables Transactions (determined in accordance with the terms proviso to the definition of the Clinton Lease;
(o) Indebtedness under fuel price swaps“Indebtedness”), 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 of the Borrowers, provided that the aggregate amount of such agreements do shall not exceed $500,000, the maturity 15% of such agreements do not exceed six (6) months, the terms are consistent with past practices of the Borrowers, and such agreements are entered into with the Agent or Consolidated Tangible Assets at any Bank and secured by the Collateral; and
(p) Indebtedness in respect of interest rate protection arrangements satisfactory to the Agent entered into with the Agent or any Bank and secured by the Collateraltime.
Appears in 1 contract
Restrictions on Indebtedness. None of the Borrowers shall become Create, incur, suffer or be a guarantor permit to exist, or surety ofassume or guarantee, either directly or indirectly, or otherwise create, incur, assume, or be become or remain liable, contingently or otherwise, liable with respect to to, any Indebtedness, or become or be responsible in any manner except the following (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 which Indebtedness of any other Person, or incur any Indebtedness other than:is expressly permitted):
(a) Indebtedness to outstanding at the Banks and the Agent arising under 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) Subject to 8.9, Subordinated Debt in an aggregate outstanding principal amount not to exceed $15,000,000;
(c) 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 date hereof, together with any renewals, extensions or refinancings thereof on terms which are not materially different than those in effect as of the date hereof;
(d) Current liabilities incurred in the ordinary course of 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;
(e) Indebtedness in respect of taxes(i) Taxes, 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 and Indebtedness of the Borrowers secured by liens of carriersSection 8.2 hereof, warehousemen, mechanics and materialmen permitted by 8.2;
(fii) Indebtedness in respect of judgments or awards (A) which have been in force for less than the applicable appeal period for taking an appeal so long as execution is not levied thereunder or in respect of which Gerber or any Borrower Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review in a manner reasonably satisfactory to the Lenders and in respect of which a stay of execution shall have been obtained pending such appeal or review and for which adequate reserves have been established in respect accordance with generally accepted accounting principles or (B) not constituting an Event of which the Borrowers have maintained adequate reserves;
Default under Section 10.1(g) and (giii) Indebtedness of any Borrower with respect to guaranty, suretyship or indemnification obligations endorsements made in connection with such Borrower's performance the deposit of services items for its respective customers credit or collection in the ordinary course of its business;.
(hc) [Intentionally omitted];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; (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 owing 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 Parent;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).
(jf) Intercompany 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 among shall at no time exceed the Subsidiaries;gross proceeds actually received by the Borrowers and their Subsidiaries in connection with such disposition.
(kg) Indebtedness in respect of a 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;Yunique Earnout.
(lh) 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 Borrowers shall not exceed $10,000,000 at any time;
(m) Indebtedness incurred in connection with the acquisition by the Borrowers of real or personal property, including Indebtedness in respect of non-compete payments; provided that the aggregate outstanding principal amount of such Indebtedness of the Borrowers shall not exceed $15,000,000 at any time;Connecticut Master Lease.
(ni) Indebtedness in an aggregate amount not to exceed $10,501,284 payable to Clinton CountyNet obligations (contingent or otherwise) existing or arising under any Hedging Agreements valued at their Swap Termination Value, New York under and in accordance with the terms of the Clinton Lease;
provided, that such obligations are (oor were) Indebtedness under fuel price swaps, fuel price caps, and fuel price collar entered into by Gerber or floor agreements, and similar agreements or arrangements designed to protect against or manage fluctuations in fuel prices with respect to fuel purchased its Subsidiaries in the ordinary course of business and not for purposes of the Borrowers, provided that the aggregate amount of such agreements do not exceed $500,000, the maturity of such agreements do not exceed six (6) months, the terms are consistent with past practices of the Borrowers, and such agreements are entered into with the Agent or any Bank and secured by the Collateral; and
(p) Indebtedness in respect of interest rate protection arrangements satisfactory to the Agent entered into with the Agent or any Bank and secured by the Collateralspeculation.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Gerber Scientific Inc)
Restrictions on Indebtedness. None The Borrower will not, and will not permit any of the Borrowers shall become or be a guarantor or surety ofits Subsidiaries to, or 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 Banks and the Agent arising under this Agreement or any of the Loan Documents;
(b) Subject Indebtedness of the Borrower to 8.9, Subordinated Debt any Subsidiary and any Subsidiary to the Borrower or any other Subsidiary to the extent the Indebtedness referred to in an aggregate outstanding principal amount not to exceed $15,000,000this Section 9.1(b) evidences a loan or advance permitted under Section 9.3;
(c) Existing Indebtedness with respect to loans consisting of reimbursement obligations under surety, indemnity, performance, release and capitalized leases listed on Schedule 8.1(c) hereto in an aggregate amount not to exceed $7,500,000, on the terms appeal bonds and conditions in effect as guarantees thereof and letters of the date hereof, together with any renewals, extensions or refinancings thereof on terms which are not materially different than those in effect as of the date hereof;
(d) Current liabilities incurred credit required in the ordinary course of 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 the enforcement of goods rights or claims of the Borrower or its Subsidiaries, in each case to the extent a Letter of Credit supports in whole or in part the obligations of the Borrower and servicesits Subsidiaries with respect to such bonds, guarantees and letters of credit;
(d) Subordinated Debt;
(e) Indebtedness in respect of taxesCapitalized Leases, assessmentsSynthetic Leases and purchase money obligations for fixed or capital assets, governmental charges or levies and claims for laborif subject to a Lien permitted by Section 9.2.1(iv), materials and supplies to within the extent that payment therefor shall not at limitations set forth in such Section 9.2.1(iv); provided, however, the time be required to be made in accordance with the provisions aggregate amount of 7.8 and such Indebtedness of the Borrowers secured by liens Borrower and its Subsidiaries shall not exceed the aggregate amount of carriers, warehousemen, mechanics and materialmen permitted by 8.2$15,000,000 at any one time;
(f) Indebtedness permitted by Section 9.10 in respect of judgments 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 any 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 reservesHedging Agreements;
(g) Indebtedness existing on the date hereof and listed and described on Schedule 9.1 hereto including any extension or renewals or refinancing thereof, provided the principal amount thereof is not increased;
(h) Indebtedness consisting of any guarantees by the Borrower with respect to guaranty, suretyship or indemnification obligations in connection with such Borrower's performance of services for and its respective customers Subsidiaries incurred in the ordinary course of its business;
(h) [Intentionally omitted];
(i) Indebtedness of any Subsidiary owing to the Parent;
(j) Intercompany Indebtedness among the Subsidiaries;
(k) Indebtedness in respect of a 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 business 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 Borrowers shall not exceed $10,000,000 at any time;
(m) Indebtedness incurred in connection with the acquisition by the Borrowers of real or personal property, including Indebtedness in respect of non-compete payments; provided that 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 Lease15,000,000 at any one time;
(oi) Indebtedness under fuel consisting of the Subsidiary Guaranties;
(j) Indebtedness consisting of guarantees of the Borrower and the Subsidiary Guarantors in respect of Indebtedness otherwise permitted hereunder of the Borrower or any wholly-owned Subsidiary of the Borrower; and;
(k) Indebtedness owed to a seller as part of the purchase price swaps, fuel price caps, and fuel price collar in connection with a Permitted Acquisition or floor agreements, and similar agreements or arrangements designed that (i) relates to protect against or manage fluctuations in fuel prices the customary post-closing adjustments with respect to fuel purchased accounts receivable, accounts payable, net worth and/or similar items typically subject to post-closing adjustments in similar transactions, and are outstanding for a period of two (2) years or less following the creation thereof or (ii) relates to indemnities granted to the seller in the ordinary course of business of the Borrowers, provided that the aggregate amount of such agreements do not exceed $500,000, the maturity of such agreements do not exceed six (6) months, the terms are consistent with past practices of the Borrowers, and such agreements are entered into with the Agent or any Bank and secured by the Collateral; and
(p) Indebtedness in respect of interest rate protection arrangements satisfactory to the Agent entered into with the Agent or any Bank and secured by the Collateraltransaction.
Appears in 1 contract
Restrictions on Indebtedness. None of The Borrowers and the Borrowers shall become or be a guarantor or surety ofGuarantors may, or otherwise and may permit their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liableliable for, 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 Banks and the Agent arising under this Agreement or the Loan DocumentsIntentionally Omitted;
(b) Subject to 8.9, Subordinated Debt Indebtedness which would result in an aggregate outstanding principal amount not to exceed $15,000,000a Default or Event of Default under §10 hereof or under any other provision of this Credit Agreement;
(c) Existing Indebtedness with respect to loans and capitalized leases listed on Schedule 8.1(c) hereto in an An aggregate amount not to exceed in excess of $7,500,000, on the terms and conditions in effect as of the date hereof, together with 5,000,000 at any renewals, extensions or refinancings thereof on terms which are not materially different than those in effect as of the date hereof;
(d) Current liabilities incurred in the ordinary course of 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;
(e) Indebtedness one time in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that for which payment therefor shall not at the time be is required to be made in accordance with the provisions of 7.8 §8.9 and Indebtedness of the Borrowers secured by liens of carriers, warehousemen, mechanics and materialmen permitted by 8.2has not been timely made;
(fd) Indebtedness An aggregate amount in excess of $5,000,000 at any one time in respect of uninsured judgments or awards, with respect to which the applicable periods for taking appeals have expired, or with respect to which final and unappealable judgments 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 any 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;rendered; and
(ge) Indebtedness of any Borrower with respect to guaranty, suretyship or indemnification obligations in connection with such Borrower's performance of services for its respective customers Current unsecured liabilities incurred in the ordinary course of its business;
(h) [Intentionally omitted];
, which (i) Indebtedness of any Subsidiary owing to the Parent;
are overdue for more than sixty (j60) Intercompany Indebtedness among the Subsidiaries;
days, (kii) Indebtedness in respect of a letter of credit issued by Allbank Bank exceed $5,000,000 in the face amount of $168,000; provided that if the Agent, in its sole and absolute discretion, aggregate at any time one time, and for any reason so requests(iii) are not being contested in good faith. For the avoidance of doubt, the Borrowers shall promptly replace such letter terms and provisions of credit with a Letter of Credit issued by this §9.1 are in addition to, and not in limitation of, the Agent pursuant to the terms covenants set f▇▇▇▇ ▇▇ §▇▇ of this Credit Agreement;
(l) . Notwithstanding anything contained herein to the contrary, the Borrowers and the Guarantors will not, and will not permit any Subsidiary to, incur any Indebtedness for borrowed money which, together with other Indebtedness for borrowed money incurred in connection with the acquisition after by any Borrower, any Guarantor, and any Subsidiary since the date hereof of the most recent compliance certificate delivered to the Administrative Agent in accordance with this Credit Agreement, exceeds $5,000,000 in the aggregate unless the Borrowers shall have delivered a compliance certificate in the form of Exhibit D-4 hereto to the Administrative Agent evidencing covenant compliance at the time of delivery of the certificate and on a pro-forma basis after giving effect to such proposed Indebtedness. The Administrative Agent will use good faith efforts to cause any personal property compliance certificate delivered under this Credit Agreement to be delivered to each Lender in accordance with §15.12 and in any event on the same day or the Business Day following the day such compliance certificate is received by the Administrative Agent. To the extent not already a party to the Intercreditor Agreement, the Borrowers under any lease; provided that the aggregate outstanding principal amount will cause each holder of such Indebtedness for borrowed money of the Borrowers shall not exceed $10,000,000 at any time;
(m) Indebtedness incurred in connection with the acquisition which is a beneficiary of a Guaranty by the Borrowers of real or personal propertya Subsidiary Guarantor, including Indebtedness in respect of non-compete payments; provided that 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 sign 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 of the Borrowers, provided that the aggregate amount of such agreements do not exceed $500,000, the maturity of such agreements do not exceed six (6) months, the terms are consistent with past practices of the Borrowers, and such agreements are entered into with the Agent or any Bank and secured by the Collateral; and
(p) Indebtedness in respect of interest rate protection arrangements satisfactory deliver to the Administrative Agent entered into with a joinder to the Agent or any Bank and secured by the CollateralIntercreditor Agreement.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Sovran Self Storage Inc)
Restrictions on Indebtedness. None of the Borrowers shall become or be a guarantor or surety of, or otherwise create, Credit Parties nor any of its Subsidiaries will 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 secured by purchase money security interests and Capitalized Leases permitted by Section 7.03(a)(viii) and any Permitted Refinancing thereof; provided, that the aggregate amount of such Indebtedness described in this subclause (a) shall not exceed $8,000,000 plus any additional amounts permitted to be incurred pursuant to the Banks and definition of Permitted Refinancing;
(b) Indebtedness of the Agent arising Credit Parties consisting of the Obligations under this Agreement or the Loan Documents;
(bc) Subject to 8.9Indebtedness of the Credit Parties under the Term Credit Agreement and any Permitted Refinancing thereof; provided, Subordinated Debt that the aggregate amount of such Indebtedness described in an aggregate outstanding principal amount this subclause (c) shall not to exceed $15,000,000110,000,000 plus any additional amounts permitted to be incurred pursuant to the definition of Permitted Refinancing;
(cd) Existing Indebtedness with respect to loans of any Credit Party outstanding as of the Amendment Effective Date and capitalized leases listed reflected on Schedule 8.1(c7.02 hereto and any Permitted Refinancing thereof;
(e) hereto in an aggregate amount not to exceed $7,500,000, unsecured Subordinated Debt incurred after the Amendment Effective Date on the terms and conditions acceptable to the Administrative Agent in effect as its sole discretion, provided that (i) the maturity date of such Subordinated Debt shall be at least one hundred and 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 exceed $10,000,000;
(f) Indebtedness consisting of any Investment permitted by Sections 7.01(c), (d), or (e);
(g) Guarantees by (i) any Credit Party of Indebtedness of any other Credit Party permitted by this Section 7.02 (other than Section 7.02(k)), (ii) any Restricted Subsidiary that is not a Credit Party of any Indebtedness of any Credit Party permitted by this Section 7.02 (other than Section 7.02(k)) and (iii) any Restricted Subsidiary that is not a Credit Party of any Indebtedness of any other Restricted Subsidiary that is also not a Credit Party permitted by this Section 7.02;
(h) Indebtedness consisting of contingent liabilities under surety bonds and similar instruments incurred in the ordinary course of business; and
(i) Indebtedness in respect of netting services, automatic clearing house arrangements, treasury management services and similar arrangements in the ordinary course of business in each case in connection with deposit and securities account;
(j) Indebtedness of the date hereofM▇▇▇ and C▇▇▇▇▇▇▇ Entities constituting earn-out obligations under the Share Purchase Agreement dated June 21, together with any renewals2013, extensions or refinancings thereof on terms which are not materially different than those by and among M&C USA, LLC and the Sellers (as defined therein), as in effect as of the date hereof;
(di) Current liabilities unsecured Indebtedness under the 2018 Contingent Promissory Note in an aggregate principal amount not to exceed $10,000,000, (ii) unsecured Indebtedness under the 2019 Contingent Promissory Note in an aggregate principal amount not to exceed $10,000,000, (iii) unsecured Indebtedness under the Guaranty Promissory Note in an aggregate principal amount not to exceed $10,000,000 and (iv) Guarantees of the Seller Notes pursuant to the Seller Note Guaranty;
(l) (i) Permitted Pari Passu Refinancing Debt, Permitted Junior Refinancing Debt and Permitted Unsecured Refinancing Debt and (ii) any Permitted Refinancing thereof;
(m) Indebtedness of the Credit Parties and their Restricted Subsidiaries consisting of Cash Management Obligations and Unsecured Cash Management Obligations;
(n) Indebtedness of the Credit Parties and their Restricted Subsidiaries consisting of Hedge Obligations incurred in the ordinary course of business not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit and on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;a non-speculative basis; and
(eo) other 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 and Indebtedness of the Borrowers secured by liens of carriers, warehousemen, mechanics and materialmen permitted by 8.2;
(f) Indebtedness in respect of judgments 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 any 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;
(g) Indebtedness of any Borrower with respect to guaranty, suretyship or indemnification obligations in connection with such Borrower's performance of services for its respective customers in the ordinary course of its business;
(h) [Intentionally omitted];
(i) Indebtedness of any Subsidiary owing to the Parent;
(j) Intercompany Indebtedness among the Subsidiaries;
(k) Indebtedness in respect of a 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 Borrowers shall not exceed $10,000,000 at any time;
(m) Indebtedness incurred in connection with the acquisition by the Borrowers of real or personal property, including Indebtedness in respect of non-compete payments; provided that 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 5,000,000 in the ordinary course of business of the Borrowers, provided that the aggregate amount of such agreements do not exceed $500,000, the maturity of such agreements do not exceed six (6) months, the terms are consistent with past practices of the Borrowers, and such agreements are entered into with the Agent or outstanding at any Bank and secured by the Collateral; and
(p) Indebtedness in respect of interest rate protection arrangements satisfactory to the Agent entered into with the Agent or any Bank and secured by the Collateraltime.
Appears in 1 contract
Sources: Credit Agreement (PetIQ, Inc.)
Restrictions on Indebtedness. None of The Borrowers and the Borrowers shall become or be a guarantor or surety ofGuarantors may, or otherwise and may permit their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liableliable for, 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 Banks and the Agent arising under this Agreement or the Loan DocumentsIntentionally Omitted;
(b) Subject to 8.9, Subordinated Debt Indebtedness which would result in an aggregate outstanding principal amount not to exceed $15,000,000a Default or Event of Default under §10 hereof or under any other provision of this Credit Agreement;
(c) Existing Indebtedness with respect to loans and capitalized leases listed on Schedule 8.1(c) hereto in an An aggregate amount not to exceed in excess of $7,500,000, on the terms and conditions in effect as of the date hereof, together with 10,000,000 at any renewals, extensions or refinancings thereof on terms which are not materially different than those in effect as of the date hereof;
(d) Current liabilities incurred in the ordinary course of 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;
(e) Indebtedness one time in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that for which payment therefor shall not at the time be is required to be made in accordance with the provisions of 7.8 §8.9 and Indebtedness of the Borrowers secured by liens of carriers, warehousemen, mechanics and materialmen permitted by 8.2has not been timely made;
(fd) Indebtedness An aggregate amount in excess of $10,000,000 at any one time in respect of uninsured judgments or awards, with respect to which the applicable periods for taking appeals have expired, or with respect to which final and unappealable judgments 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 any 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;rendered; and
(ge) Indebtedness of any Borrower with respect to guaranty, suretyship or indemnification obligations in connection with such Borrower's performance of services for its respective customers Current unsecured liabilities incurred in the ordinary course of its business;
(h) [Intentionally omitted];
, which (i) Indebtedness of any Subsidiary owing to the Parent;
are overdue for more than sixty (j60) Intercompany Indebtedness among the Subsidiaries;
days, (kii) Indebtedness in respect of a letter of credit issued by Allbank Bank exceed $10,000,000 in the face amount of $168,000; provided that if the Agent, in its sole and absolute discretion, aggregate at any time one time, and for any reason so requests(iii) are not being contested in good faith. For the avoidance of doubt, the Borrowers shall promptly replace such letter terms and provisions of credit with a Letter of Credit issued by this §9.1 are in addition to, and not in limitation of, the Agent pursuant to the terms covenants set f▇▇▇▇ ▇▇ §▇▇ of this Credit Agreement;
(l) . Notwithstanding anything contained herein to the contrary, the Borrowers and the Guarantors will not, and will not permit any Subsidiary to, incur any Indebtedness for borrowed money which, together with other Indebtedness for borrowed money incurred in connection with the acquisition after by any Borrower, any Guarantor, and any Subsidiary since the date hereof of the most recent compliance certificate delivered to the Administrative Agent in accordance with this Credit Agreement, exceeds $10,000,000 in the aggregate unless the Borrowers shall have delivered a compliance certificate in the form of Exhibit D-4 hereto to the Administrative Agent evidencing covenant compliance at the time of delivery of the certificate and on a pro-forma basis after giving effect to such proposed Indebtedness. The Administrative Agent will use good faith efforts to cause any personal property compliance certificate delivered under this Credit Agreement to be delivered to each Lender in accordance with §15.12 and in any event on the same day or the Business Day following the day such compliance certificate is received by the Administrative Agent. To the extent not already a party to the Intercreditor Agreement, the Borrowers under any lease; provided that the aggregate outstanding principal amount will cause each holder of such Indebtedness for borrowed money of the Borrowers shall not exceed $10,000,000 at any time;
(m) Indebtedness incurred in connection with the acquisition by the Borrowers of real or personal property, including Indebtedness in respect of non-compete payments; provided that the aggregate outstanding principal amount of such Indebtedness which is a beneficiary of the Borrowers shall not exceed $15,000,000 at any time;
(n) Indebtedness in an aggregate amount not Guaranty Agreement by a Subsidiary Guarantor, to exceed $10,501,284 payable to Clinton County, New York under sign 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 of the Borrowers, provided that the aggregate amount of such agreements do not exceed $500,000, the maturity of such agreements do not exceed six (6) months, the terms are consistent with past practices of the Borrowers, and such agreements are entered into with the Agent or any Bank and secured by the Collateral; and
(p) Indebtedness in respect of interest rate protection arrangements satisfactory deliver to the Administrative Agent entered into with a joinder to the Agent or any Bank and secured by the CollateralIntercreditor Agreement.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Life Storage Lp)
Restrictions on Indebtedness. None The Borrower will not, and will not permit any of the Borrowers shall become or be a guarantor or surety ofits Subsidiaries to, or 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 Banks and the Agent arising under this Agreement or any of the Loan Documents;
(b) Subject to 8.9endorsements for collection, Subordinated Debt deposit or negotiation and warranties of products or services, in an aggregate outstanding principal amount not to exceed $15,000,000;
(c) 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 date hereof, together with any renewals, extensions or refinancings thereof on terms which are not materially different than those in effect as of the date hereof;
(d) Current liabilities each case incurred in the ordinary course of business business;
(c) obligations of the Borrower under a Synthetic Lease arrangement not incurred through exceeding $100,000,000 in the aggregate pursuant to which the Borrower will lease that certain Real Estate located at th north corner of Irvine Center Drive and Sand Canyon Drive in Irvine, California (the "Property") and the improvements to be constructed thereon from the lessor (the "Permitted Synthetic Lease") provided that (i) no Default or Event of Default shall have occurred and be continuing at the borrowing time of money, incurring such Indebtedness or would exist as a result of entering into such Permitted Synthetic Lease; and (ii) the obtaining of credit except for credit on an open account basis customarily extended all documents, instruments and in fact extended agreements to be entered into in connection with normal purchases of goods therewith shall be in form and servicessubstance satisfactory to the Agent (including, without limitation, all documents pertaining to any security interests granted in connection therewith);
(d) obligations under Capitalized Leases and Synthetic Leases (other than the Permitted Synthetic Lease) not exceeding $20,000,000 in aggregate amount in any fiscal year;
(e) 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 and Indebtedness of the Borrowers secured by liens of carriers, warehousemen, mechanics and materialmen permitted by 8.2;
(f) Indebtedness in respect of judgments 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 any 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;
(g) Indebtedness of any Borrower with respect to guaranty, suretyship or indemnification obligations in connection with such Borrower's performance of services for its respective customers in the ordinary course of its business;
(h) [Intentionally omitted];
(i) Indebtedness of any Subsidiary owing to the Parent;
(j) Intercompany Indebtedness among the Subsidiaries;
(k) Indebtedness in respect of a 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 real or personal property by the Borrowers under any lease; Borrower or such Subsidiary, provided that the aggregate outstanding principal amount of such Indebtedness of the Borrowers Borrower and its Subsidiaries shall not exceed the aggregate amount of $10,000,000 5,000,000 at any one time;
(mf) Indebtedness incurred in connection with existing on the acquisition by the Borrowers of real or personal property, including Indebtedness in respect of non-compete payments; provided that the aggregate outstanding principal amount of such Indebtedness of the Borrowers shall not exceed $15,000,000 at any timedate hereof and listed and described on Schedule 10.1 hereto;
(ng) 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 of the Borrowers, provided that the aggregate amount of such agreements do not exceed $500,000, the maturity of such agreements do not exceed six (6) months, the terms are consistent with past practices of the Borrowers, and such agreements are entered into with the Agent or any Bank and secured by the Collateral; and
(p) Indebtedness in respect of interest rate protection arrangements satisfactory a Guarantor to the Agent entered into with the Agent or any Bank and secured by the Collateral.Borrower;
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Western Digital Corp)
Restrictions on Indebtedness. None Such Borrower will not, and will not permit any of the Borrowers shall become or be a guarantor or surety ofits Subsidiaries to, or 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 Banks and the Agent arising under this Agreement or any of the Loan DocumentsDocuments or any Interest Rate Agreement;
(b) Subject to 8.9endorsements for collection, Subordinated Debt deposit or negotiation and warranties of products or services, in an aggregate outstanding principal amount not to exceed $15,000,000;
(c) 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 date hereof, together with any renewals, extensions or refinancings thereof on terms which are not materially different than those in effect as of the date hereof;
(d) Current liabilities each case incurred in the ordinary course of 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;
(e) 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 and Indebtedness of the Borrowers secured by liens of carriers, warehousemen, mechanics and materialmen permitted by 8.2;
(f) Indebtedness in respect of judgments 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 any 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;
(g) Indebtedness of any Borrower with respect to guaranty, suretyship or indemnification obligations in connection with such Borrower's performance of services for its respective customers in the ordinary course of its business;
(hc) [Intentionally omitted]obligations under Capitalized Leases not exceeding $2,000,000 in aggregate amount at any time outstanding;
(i) Indebtedness of any Subsidiary owing to the Parent;
(j) Intercompany Indebtedness among the Subsidiaries;
(k) Indebtedness in respect of a 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;
(ld) Indebtedness incurred after the date hereof in connection with the acquisition after the date hereof of any real or personal property by the Borrowers under any lease; such Borrower or such Subsidiary, provided that the aggregate outstanding principal amount of such Indebtedness of the Borrowers and their Subsidiaries shall not exceed the aggregate amount of $10,000,000 3,000,000 at any one time;
(me) Indebtedness incurred in connection with existing on the acquisition by the Borrowers of real or personal property, including Indebtedness in respect of non-compete payments; provided that the aggregate outstanding principal amount of such date hereof and listed and described on Schedule 11.1 hereto;
(f) Indebtedness of the Borrowers shall Company to any Subsidiary, and Indebtedness of any Borrowing Subsidiary or Foreign Subsidiary which is a Guarantor hereunder to another Borrowing Subsidiary or Foreign Subsidiary which is a Guarantor hereunder so long as the guarantee arrangements are not exceed $15,000,000 at in any timemanner limited;
(ng) 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 of the Borrowers, provided that the aggregate amount of such agreements do not exceed $500,000, the maturity of such agreements do not exceed six (6) months, the terms are consistent with past practices of the Borrowers, and such agreements are entered into with the Agent Company or any Bank and secured by Domestic Subsidiary which is a Guarantor to any other Domestic Subsidiary which is a Guarantor or the Collateral; and
(p) Indebtedness in respect of interest rate protection arrangements satisfactory to the Agent entered into with the Agent or any Bank and secured by the Collateral.Company so long as each such Domestic Subsidiary remains a Guarantor hereunder;
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Genrad Inc)
Restrictions on Indebtedness. None Neither the Parent nor the Company will, nor will either permit any of the Borrowers shall become or be a guarantor or surety ofits Subsidiaries to, or 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:
(ai) Senior Indebtedness incurred under and pursuant to the Banks Credit Documents up to an aggregate principal amount of up to (A) $200,000,000, or (B) such greater principal amount as is permitted pursuant to the provisions of Section 10(r) and the Agent arising under this Agreement or the Loan DocumentsSection 11(f);
(bii) Subject to 8.9, Subordinated Debt in an aggregate outstanding principal amount not to exceed $15,000,000;
(c) 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 date hereofCompany and its Subsidiaries resulting from endorsements for collection, together with any renewalsdeposit or negotiation and warranties of products or services, extensions or refinancings thereof on terms which are not materially different than those in effect as of the date hereof;
(d) Current liabilities each case incurred in the ordinary course of 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;
(e) 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 and Indebtedness of the Borrowers secured by liens of carriers, warehousemen, mechanics and materialmen permitted by 8.2;
(f) Indebtedness in respect of judgments 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 any 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;
(g) Indebtedness of any Borrower with respect to guaranty, suretyship or indemnification obligations in connection with such Borrower's performance of services for its respective customers in the ordinary course of its business;
(hiii) [Intentionally omitted]the Notes, the Subsidiary Guaranty and the Parent Guaranty;
(iiv) Indebtedness of any Subsidiary owing to the Parent;
(j) Intercompany Indebtedness among the Subsidiaries;
(k) Indebtedness in respect of a 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) purchase money Indebtedness incurred in connection with the acquisition after the date hereof of any real or personal property by the Borrowers Parent, the Company or any of their Subsidiaries or under any leaseCapitalized Lease, and any refunding, refinancing, modification and amendment thereof, which does not have the effect of increasing the principal amount thereof (or accreted value thereof) plus accrued and unpaid interest on the Indebtedness so refunded, refinanced, modified or amended (plus the amount of necessary fees and expenses incurred in connection therewith and any premiums paid on the Indebtedness repaid), provided that such Indebtedness is incurred within 90 days following such acquisition, it does not exceed 100% of the purchase price thereof and the aggregate principal amount of such Indebtedness of the Parent, the Company and each of their Subsidiaries shall not exceed the outstanding aggregate principal amount of $5,000,000 at any one time, and provided, further, that the aggregate principal amount of Indebtedness permitted under Section 10(a)(iv), Section 10(a)(xi)(A), Section 10(a)(xv) and Section 10(a)(xvi) shall not collectively exceed the amount of $20,000,000 at any one time;
(v) Indebtedness existing on the date of this Agreement and listed and described on Schedule 10(a) hereto; and any refunding, refinancing, modification and amendment thereof, which does not have the effect of increasing the principal amount thereof (or accreted value thereof) plus accrued and unpaid interest on the Indebtedness so refunded, refinanced, modified or amended (plus the amount of necessary fees and expenses incurred in connection therewith and any premiums paid on the Indebtedness repaid) and which is otherwise on terms and conditions not materially less favorable to the Company, its Subsidiaries, and the Holders than the terms of the Indebtedness being refinanced; provided, that, any refunding, refinancing, modifications and amendments of any Transaction Debt listed on Schedule 10(a) shall be on terms no less materially favorable to the Company, the Subsidiaries or the Holders, as reasonably determined by the Holders, than the terms of the Indebtedness being refinanced (other than as specifically contemplated by the Merger Agreement to occur on or prior to the Second Closing Date);
(vi) subordinated unsecured Indebtedness of the Parent to the Sponsor and its Affiliates in an aggregate principal amount (when incurred) not to exceed $10,000,000 at any time outstanding, the terms and conditions of which either (A) shall be reasonably satisfactory to the Holders or (B) shall be expressly subordinated and junior in right and time of payment to the Obligations and that is evidenced by written agreement(s) which provide, at a minimum, that such Indebtedness (1) shall bear interest which is only payable in kind and not in cash until after the Subdebt Maturity Date, (2) shall not require any payment of principal (scheduled, by maturity or otherwise) prior to 91 days after the Subdebt Maturity Date and (3) shall have covenants that, taken as a whole, are materially less restrictive than those contained in this Agreement;
(vii) Indebtedness of the Company, the Parent (solely to the extent permitted under Section 10(e)) or a Domestic Subsidiary, to the Company or the Parent or another Domestic Subsidiary of either the Company or the Parent, so long as such Indebtedness is subordinated to the prior payment in full of the Obligations pursuant to terms of the Intercompany Subordination Agreement;
(viii) Indebtedness of a Foreign Subsidiary to (A) another Foreign Subsidiary, (B) the Parent, so long as the underlying loan is funded solely with the proceeds of the Indebtedness described in subparagraph (vi) above or funded with an equity investment in the Parent, or (C) the Company or a Domestic Subsidiary of the Company, so long as (1) such Indebtedness is subordinated to the prior payment in full of the Obligations pursuant to terms of the Intercompany Subordination Agreement and (2) the aggregate principal amount of all Indebtedness on or after the Initial Closing Date under this Section 10(a)(viii)(C) does not exceed in each case, in the aggregate outstanding at any one time, the sum of (x) $10,000,000 with respect to the Indebtedness solely of Bell Canada, plus (y) $3,000,000 with respect to the Indebtedness of any Significant Foreign Subsidiaries (including Bell ▇▇▇ada);
(ix) (A) prior to the Second Closing Date, Indebtedness under the Indenture Notes, the Convert Notes, the 14% Discount Notes and the 18% Debentures and (B) on and after, and only to the extent not repurchased on, the Second Closing Date, Indebtedness under the Indenture Notes, the Convert Notes and the 18% Discount Notes; provided that no Indebtedness under the Convert Notes shall exist after November 15, 2000;
(x) Indebtedness under any Hedging Agreement permitted to be maintained under the Credit Agreement.
(xi) (A) Indebtedness (including Acquired Indebtedness) either acquired or incurred in connection with Permitted Acquisitions or Permitted Foreign Acquisitions, the terms and conditions of which may be senior secured to or parri passu in right of payment with the Obligations, in an aggregate principal amount not to exceed $7,500,000 at any time outstanding, (B) unsecured Indebtedness either acquired or incurred in connection with Permitted Acquisitions or Permitted Foreign Acquisitions after the date hereof of any equity interest in, or assets of any Person, the terms and conditions of which may be parri passu in right of payment with the Obligations, in an aggregate principal amount not to exceed $2,500,000 at any time outstanding, and (C) junior subordinated unsecured Indebtedness, either acquired or incurred in connection with Permitted Acquisitions or Permitted Foreign Acquisitions after the date hereof of any equity interest in, or assets of any Person, the terms and conditions of which shall be expressly subordinate in right of payment and other rights to the Obligations, in an aggregate principal amount not to exceed $5,000,000 at any time outstanding; provided, however, that the aggregate principal amount of Indebtedness permitted under Section 10(a)(iv), Section 10(a)(xi)(A), Section 10(a)(xv) and Section 10(a)(xvi) shall not collectively exceed the amount of $20,000,000 at any one time;
(xii) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within three Business Days of incurrence;
(xiii) Indebtedness arising from agreements of the Company or a Subsidiary of the Company providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred in connection with a Permitted Asset Disposition, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition; provided, that such Indebtedness not exceed the amounts set aside by the Company or a Subsidiary of the Company as a reserve, in accordance with GAAP, other than such Indebtedness which is not reflected on the balance sheet of the Company or any Subsidiary or referenced in a footnote to financial statements and not otherwise reflected on the balance sheet, against any liabilities associated with such Permitted Asset Disposition including, without limitation, pension and other post-employment benefit liabilities, liabilities related to environmental matters and liabilities under any indemnification obligations associated with any such Permitted Asset Disposition;
(xiv) Indebtedness of the Company or any of its Subsidiaries in respect of performance bonds, bankers' acceptances, workers' compensation claims, surety or appeal bonds, payment obligations in connection with self-insurance or similar obligations, and bank overdrafts;
(xv) additional Indebtedness of the Company and its Subsidiaries in an aggregate principal amount not to exceed $6,000,000 at any one time outstanding; provided, however, that the aggregate outstanding principal amount of such Indebtedness permitted under Section 10(a)(iv), Section 10(a)(xi)(A), Section 10(a)(xv) and Section 10(a)(xvi) shall not collectively exceed the amount of $20,000,000 at any one time outstanding; and
(xvi) Indebtedness of the Borrowers shall not exceed $10,000,000 at Foreign Subsidiaries (excluding any time;
intercompany debt permitted under clause (mviii), but including any existing Indebtedness scheduled under clause (v)) Indebtedness incurred in connection with the acquisition by the Borrowers of real or personal property, including Indebtedness in respect of non-compete payments; provided that 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 principal amount not to exceed $10,501,284 payable to Clinton County3,000,000 at any one 60 time outstanding; provided, New York however, that the aggregate principal amount of Indebtedness permitted under Section 10(a)(iv), Section 10(a)(xi)(A), Section 10(a)(xv) and in accordance with Section 10(a)(xvi) shall not collectively exceed the terms amount of $20,000,000 at any one time. Notwithstanding the Clinton Lease;
(o) Indebtedness under fuel price swapsforegoing, fuel price capsneither the Parent nor the Company will, and fuel price collar nor will either permit any of its Subsidiaries to, create, incur, assume, or floor agreementsguarantee, and similar agreements contingently or arrangements designed to protect against or manage fluctuations in fuel prices otherwise, with respect to fuel purchased any Indebtedness under Section 10(a)(iv), Section 10(a)(xi)(A), Section 10(a)(xi)(B) and Section 10(a)(xv) after a Default or an Event of Default has occurred and is continuing. Notwithstanding Sections 10(a)(i)-(xvi), the Parent, the Company and each of their Subsidiaries shall not at any time incur Indebtedness in the ordinary course of business excess of the Borrowers, provided that levels permitted under the aggregate amount of such agreements do not exceed $500,000, the maturity of such agreements do not exceed six (6) months, the terms are consistent with past practices covenants contained in Section 4.10 of the BorrowersIndenture, for so long as such covenants are in full force and such agreements are entered into with effect. All Indebtedness incurred hereunder is intended to be Indebtedness incurred under the Agent or any Bank and secured by first paragraph of Section 4.10 of the Collateral; and
(p) Indebtedness in respect of interest rate protection arrangements satisfactory to the Agent entered into with the Agent or any Bank and secured by the CollateralIndenture.
Appears in 1 contract
Restrictions on Indebtedness. None The Borrower will not, and will not permit its respective Subsidiaries or any of the Borrowers shall become or be a guarantor or surety ofGuarantors to, or 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 Banks and the Agent Lenders arising under this Agreement or any of the Loan Documents;
(b) Subject to 8.9, Subordinated Debt in an aggregate outstanding principal amount not to exceed $15,000,000;
(c) 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 current liabilities of the date hereofBorrower, together with any renewals, extensions the Guarantors or refinancings thereof on terms which are not materially different than those in effect as of the date hereof;
(d) Current liabilities 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;
(ec) 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 and Indebtedness of the Borrowers secured by liens of carriers, warehousemen, mechanics and materialmen permitted by 8.2§7.8;
(fd) Indebtedness in respect of judgments or awards which have been only to the extent, for the period and for an amount not resulting 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 any 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 reservesDefault;
(ge) Indebtedness endorsements for collection, deposit or negotiation and warranties of any Borrower with respect to guarantyproducts or services, suretyship or indemnification obligations in connection with such Borrower's performance of services for its respective customers each case incurred in the ordinary course of its business;
(hf) [Intentionally omitted];
(i) Indebtedness of any Subsidiary owing subject to the Parent;
(j) Intercompany provisions of §9, Recourse Indebtedness among the Subsidiaries;
(k) Indebtedness in respect of a 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 Borrowers shall not exceed $10,000,000 at any time;
(m) Indebtedness incurred in connection with the acquisition by the Borrowers of real or personal property, including Indebtedness in respect of non-compete payments; provided that 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 of the Borrowerswhich is Secured Debt, provided that the aggregate amount of such agreements do Recourse Indebtedness outstanding at any one time shall not exceed seven and one-half percent (7.5%) of Consolidated Total Asset Value;
(g) Non-Recourse Indebtedness of Subsidiaries of Borrower that are not Guarantors;
(h) Non-Recourse Indebtedness of Borrower or a Guarantor constituting purchase money indebtedness or incurred in connection with equipment financing, not to exceed $500,000, 2,000,000.00 in the maturity of such agreements do not exceed six aggregate outstanding at any time;
(6i) months, the terms are consistent with past practices of the Borrowers, and such agreements are entered into with the Agent or any Bank and secured by the CollateralIntentionally Omitted; and
(p) Indebtedness in respect of interest rate protection arrangements satisfactory to the Agent entered into with the Agent or any Bank and secured by the Collateral.
Appears in 1 contract
Restrictions on Indebtedness. None of The Borrower and the Borrowers shall become or be a guarantor or surety ofGuarantors will not, or otherwise and will not permit their respective Subsidiaries to, 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 Banks and the Agent Lenders arising under this Agreement or any of the Loan Documents;
(b) Subject subject to 8.9the provisions of §9, Subordinated Unsecured Debt in an aggregate outstanding principal amount not respect of any Derivative Contracts entered into by Borrower, the Guarantors or their respective Subsidiaries in the ordinary course of business for matters related to exceed $15,000,000the operation of Data Center Properties (e.g., foreign currency ▇▇▇▇▇▇ or diesel fuel swaps to hedge commodity exposure);
(c) 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 current liabilities of the date hereofBorrower, together with any renewals, extensions the Guarantors or refinancings thereof on terms which are not materially different than those in effect as of the date hereof;
(d) Current liabilities 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;
(ed) 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 §7.8 and Indebtedness of the Borrowers secured by liens of carriersor §8.20, warehousemen, mechanics and materialmen permitted by 8.2as applicable;
(e) [Intentionally Omitted;]
(f) Indebtedness endorsements for collection, deposit or negotiation incurred in respect the ordinary course of judgments 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 any 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 reservesbusiness;
(g) subject to the provisions of §9, Secured Debt, provided that (A) the aggregate amount of Secured Debt shall not exceed forty percent (40%) of Gross Asset Value; provided, however, that for one or more periods of up to four (4) consecutive fiscal quarters immediately following each Material Acquisition of which Borrower has given Agent written notice (with such four (4) consecutive fiscal quarter period to include the quarter in which such Material Acquisition is consummated), such 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 Obligations to the extent ever secured hereunder) shall not exceed fifteen percent (15%) of any Borrower Gross Asset Value, and (2) the aggregate amount of Capitalized Lease Obligations of Parent Company and its Subsidiaries with respect to guaranty, suretyship or indemnification obligations in connection with such Borrower's performance any of services for its respective customers in the ordinary course of its businessUnencumbered Asset Pool Properties shall not exceed $45,000,000.00;
(h) [Intentionally omittedOmitted;];
(i) Indebtedness of any Subsidiary owing to the Parent[Intentionally Omitted;]
(j) Intercompany Indebtedness among the Subsidiaries;[Intentionally Omitted]; and
(k) Indebtedness in respect of a 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 subject to the terms provisions of this Credit Agreement;
§9, Unsecured Debt of the REIT or Subsidiaries of the REIT that are not Initial Subsidiary Guarantors or Additional Subsidiary Guarantors (l) Indebtedness incurred in connection with the acquisition after the date hereof of or any personal property by the Borrowers under any lease; provided that the aggregate outstanding principal amount direct or indirect owners of such Indebtedness of the Borrowers shall not exceed $10,000,000 at any time;
(m) Indebtedness incurred in connection with the acquisition by the Borrowers of real or personal property, including Indebtedness in respect of non-compete payments; provided that 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 of the BorrowersSubsidiaries), provided that the aggregate amount of such agreements do not exceed $500,000, Initial Subsidiary Guarantors and the maturity of such agreements do not exceed six (6) months, Additional Subsidiary Guarantors may incur Unsecured Debt only if it has the terms are consistent with past practices of Unencumbered Asset Pool Properties as a borrowing base or the Borrowers, and such agreements are entered into with the Agent or any Bank and secured by the Collateral; and
(p) Indebtedness in respect of interest rate protection arrangements satisfactory documents evidencing same contain a covenant substantially similar to the Agent entered into with the Agent or any Bank and secured by the Collateral.Section 4.12
Appears in 1 contract
Restrictions on Indebtedness. None of the Borrowers shall become or be a guarantor or surety of, or otherwise The Borrower will not create, incur, assume, assume or be or remain liable, contingently or otherwise, with respect suffer 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 exist any Indebtedness other thanexcept:
(ai) Indebtedness to the Banks and the Agent arising under this Agreement or the Loan DocumentsObligations;
(bii) Subject accounts payable to 8.9, Subordinated Debt in an aggregate outstanding principal amount not to exceed $15,000,000;
(c) 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 date hereof, together with any renewals, extensions or refinancings thereof on terms which are not materially different than those in effect as of the date hereof;
(d) Current liabilities trade creditors incurred in the ordinary course of business and 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 servicesmore than [***] days past due;
(eiii) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims Capitalized Lease Liabilities 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 and Indebtedness of the Borrowers secured by liens of carriers, warehousemen, mechanics and materialmen permitted by 8.2;
(f) Indebtedness in respect of judgments 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 any 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;
(g) Indebtedness rental of any Borrower with respect to guaranty, suretyship or indemnification obligations in connection with such Borrower's performance of services for its respective customers in the ordinary course of its business;
(h) [Intentionally omitted];
(i) Indebtedness of any Subsidiary owing to the Parent;
(j) Intercompany Indebtedness among the Subsidiaries;
(k) Indebtedness in respect of a 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 Borrowers shall not exceed $10,000,000 at any time;
(m) Indebtedness incurred in connection with the acquisition by the Borrowers of real or personal property, including Indebtedness in respect of non-compete payments; provided property for the Systems that the aggregate outstanding principal amount of such Indebtedness of the Borrowers shall not exceed $15,000,000 at any time;
(nA) 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 are entered in the ordinary course of business of the BorrowersSystems, provided that and (B) either (1) are budgeted for under an Operating Budget approved in accordance with the terms of this Agreement and clearly indicated as Capitalized Lease Liabilities in such budget or (2) do not entail payments to the lessors in excess of [***] in the aggregate amount of such agreements do not exceed $500,000, for all Systems in any one fiscal year;
(iv) Indebtedness related to the maturity of such agreements do not exceed six (6) months, the terms are consistent with past practices purchase of the Borrowersdiscrete items of personal property contemplated in Section 7.02(b)(vii); provided, that all amounts secured by such Liens are paid when due and paid in full within [***] months of the date such agreements are entered into Lien attaches;
(v) unsecured Indebtedness for working capital and other general corporate purposes of the Borrower that is subordinate in priority of payment to the Loans and that does not exceed, in the aggregate, [***] at any one time outstanding with respect to all of the Systems, to be paid solely from cash available for distributions in accordance with the Agent tenth priority of Section 4.2(c) of the Accounts Agreement;
(vi) Indebtedness owed by the Borrower to the Parent or any Bank and secured by Affiliate thereof that is subordinated in writing on terms satisfactory to the CollateralLender, in its sole discretion, to be paid solely from cash available for distributions in accordance with the tenth priority of Section 4.2(c) of the Accounts Agreement; and
(pvii) Indebtedness under Secured Rate Contracts contemplated in respect of interest rate protection arrangements satisfactory to the Agent entered into with the Agent or any Bank and secured by the CollateralSection 7.01(t) (Rate Contracts).
Appears in 1 contract
Sources: Credit Agreement (Bloom Energy Corp)
Restrictions on Indebtedness. None of The Borrower and the Borrowers shall become or be a guarantor or surety ofGuarantors will not, or otherwise and will not permit their respective Subsidiaries to, 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 Banks and the Agent Lenders arising under this Agreement or any of the Loan Documents;
(b) Subject subject to 8.9the provisions of §9, Subordinated Unsecured Debt in an aggregate outstanding principal amount not respect of any Derivative Contracts entered into by Borrower, the Guarantors or their respective Subsidiaries in the ordinary course of business for matters related to exceed $15,000,000the operation of Data Center Properties (e.g., foreign currency ▇▇▇▇▇▇ or diesel fuel swaps to hedge commodity exposure);
(c) 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 current liabilities of the date hereofBorrower, together with any renewals, extensions the Guarantors or refinancings thereof on terms which are not materially different than those in effect as of the date hereof;
(d) Current liabilities 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;
(ed) 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 §7.8 and Indebtedness of the Borrowers secured by liens of carriersor §8.20, warehousemen, mechanics and materialmen permitted by 8.2as applicable;
(e) [Intentionally Omitted;]
(f) Indebtedness endorsements for collection, deposit or negotiation incurred in respect the ordinary course of judgments 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 any 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 reservesbusiness;
(g) subject to the provisions of §9, Secured Debt, provided that (A) the aggregate amount of Secured Debt shall not exceed forty percent (40%) of Gross Asset Value; provided, however, that for one or more periods of up to four (4) consecutive fiscal quarters immediately following each Material Acquisition of which Borrower has given Agent written notice (with such four (4) consecutive fiscal quarter period to include the quarter in which such Material Acquisition is consummated), such 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 Obligations to the extent ever secured hereunder) shall not exceed fifteen percent (15%) of any Borrower Gross Asset Value, and (2) the aggregate amount of Capitalized Lease Obligations of Parent Company and its Subsidiaries with respect to guaranty, suretyship or indemnification obligations in connection with such Borrower's performance any of services for its respective customers in the ordinary course of its businessUnencumbered Asset Pool Properties shall not exceed $45,000,000.00;
(h) [Intentionally omittedOmitted;];
(i) Indebtedness of any Subsidiary owing to the Parent[Intentionally Omitted;]
(j) Intercompany Indebtedness among the Subsidiaries;[Intentionally Omitted]; and
(k) subject to the provisions of §9, Unsecured Debt of (i) the REIT or Subsidiaries of the REIT that are not the Borrower, the Initial Subsidiary Guarantors or Additional Subsidiary Guarantors (or any direct or indirect owners of such Subsidiaries), and (ii) the Borrower, Initial Subsidiary Guarantors and the Additional Subsidiary Guarantors, provided that such Unsecured Debt only has the Unencumbered Asset Pool Properties as a borrowing base or the documents evidencing same contain a covenant substantially similar to Section 4.12 of the Indenture. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in respect §8.1(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 a letter 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, asset pool or any similar form of credit issued by Allbank Bank in the face amount of $168,000; support for such Indebtedness (provided that if the Agentforegoing shall not preclude Subsidiaries of the Parent Company (other than a Subsidiary Guarantor that either (A) owns, in its sole and absolute discretiondirectly or indirectly, at an Unencumbered Asset Pool Property, or (B) that directly or indirectly provides services to an Unencumbered Asset Pool Property (or any time and for any reason so requests, the Borrowers shall promptly replace direct or indirect owners of such letter of credit with a Letter of Credit issued by the Agent pursuant Subsidiaries)) to incur Non-Recourse Indebtedness subject to the terms of this Credit Agreement;
(l) Indebtedness incurred in connection with §8.1 or recourse to 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 general credit of the Borrowers shall not exceed $10,000,000 at any time;
(m) Indebtedness incurred in connection with Parent Company or the acquisition by the Borrowers of real or personal property, including Indebtedness in respect of non-compete payments; provided that 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 capsBorrower), and fuel price collar (ii) neither REIT nor any Subsidiary Guarantor that (A) either owns, directly or floor agreementsindirectly, and similar agreements an Unencumbered Asset Pool Property, or arrangements designed (B) that directly or indirectly provides services to protect against an Unencumbered Asset Pool Property, shall create, incur, assume, guarantee or manage fluctuations in fuel prices be or remain liable, contingently or otherwise, with respect to fuel purchased 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 described in the ordinary course of business of the Borrowers§§8.1(a)-(d), provided that the aggregate amount of such agreements do (f) and (k) above and Capitalized Lease Obligations not exceed $500,000, the maturity of such agreements do not exceed six (6otherwise prohibited by §8.1(g) months, the terms are consistent with past practices of the Borrowers, and such agreements are entered into with the Agent or any Bank and secured by the Collateral; and
(p) Indebtedness in respect of interest rate protection arrangements satisfactory to the Agent entered into with the Agent or any Bank and secured by the Collateralabove.
Appears in 1 contract
Restrictions on Indebtedness. None Each Borrower will not, and will not permit any of the Borrowers shall become or be a guarantor or surety ofits Subsidiaries to, or 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:than the following (each of which categories shall be interpreted as being separately permitted, notwithstanding any overlap among such categories):
(a) Indebtedness to the Banks and the Agent Bank arising under this Agreement or any of the Loan Documents;
(b) Subject endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) Indebtedness (i) incurred in connection with the secured financing of any real or personal property by ▇▇▇▇▇▇ US or any of its Subsidiaries, (ii) under any Synthetic Lease or (iii) under any Capitalized Lease, provided that the aggregate principal amount of such Indebtedness (including under any such Synthetic Lease or Capitalized Lease) of ▇▇▇▇▇▇ US and its Subsidiaries shall not exceed the aggregate amount of $10,000,000 at any one time;
(d) Indebtedness of ▇▇▇▇▇▇ US and its Domestic Subsidiaries existing on the date hereof and listed and described on Schedule 8.1(d) hereto;
(e) Indebtedness of ▇▇▇▇▇▇ US's Foreign Subsidiaries existing on the date hereof and listed and described on Schedule 8.1(e) hereto;
(f) Indebtedness (i) of a Subsidiary of ▇▇▇▇▇▇ US to 8.9▇▇▇▇▇▇ US or to another Subsidiary of ▇▇▇▇▇▇ US, Subordinated Debt (ii) of ▇▇▇▇▇▇ US to any Guarantor, or (iii) of ▇▇▇▇▇▇ US to World Properties in an aggregate outstanding principal amount not to exceed $15,000,000;
20,000,000; provided that in each of cases (cii) Existing and (iii) above, such Indebtedness with respect shall be subordinated to loans and capitalized leases listed the Obligations 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 date hereof, together with any renewals, extensions or refinancings thereof on terms which are not materially different than those in effect as of the date hereof;
(d) Current liabilities incurred in the ordinary course of 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;
(e) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies satisfactory to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of 7.8 and Indebtedness of the Borrowers secured by liens of carriers, warehousemen, mechanics and materialmen permitted by 8.2;
(f) Indebtedness in respect of judgments 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 any 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 reservesBank;
(g) Indebtedness of any Borrower with respect to guaranty, suretyship or indemnification obligations in connection with such Borrower's performance of services for its respective customers in the ordinary course of its business;[Intentionally Omitted]
(h) [Intentionally omitted];
(i) Indebtedness of any Subsidiary owing to the Parent;
Foreign Subsidiaries (jother than as permitted by §8.1(f)) Intercompany Indebtedness among the Subsidiaries;
(k) Indebtedness in respect of a letter of credit issued by Allbank Bank in the face amount of $168,000; provided that if the Agentwhich, in its sole and absolute discretionwhen aggregated with amounts outstanding under §8.1(e), 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 Borrowers shall not exceed $10,000,000 fifty percent (50%) of Consolidated Foreign Tangible Assets at any time;
(mi) Indebtedness incurred in connection with the acquisition by the Borrowers of real or personal property, including [Intentionally Omitted]
(j) Indebtedness in respect of non-compete paymentsDerivative Contracts entered into solely for hedging (and not speculative) purposes in the ordinary course of ▇▇▇▇▇▇ US's (or the applicable Subsidiary's) business; and
(k) unsecured Indebtedness of the Borrowers and ▇▇▇▇▇▇ US's Domestic Subsidiaries other than as permitted by clauses (a) through (j) above; provided that the aggregate outstanding principal amount of all such Indebtedness of the Borrowers shall not exceed $15,000,000 25,000,000 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 of the Borrowers, provided that the aggregate amount of such agreements do not exceed $500,000, the maturity of such agreements do not exceed six (6) months, the terms are consistent with past practices of the Borrowers, and such agreements are entered into with the Agent or any Bank and secured by the Collateral; and
(p) Indebtedness in respect of interest rate protection arrangements satisfactory to the Agent entered into with the Agent or any Bank and secured by the Collateraltime outstanding.
Appears in 1 contract
Restrictions on Indebtedness. None of the Borrowers shall become or be a guarantor or surety of, or otherwise The Borrower will not create, incur, assume, assume or be or remain liable, contingently or otherwise, with respect suffer 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 exist any Indebtedness other thanexcept:
(ai) Indebtedness to the Banks and the Agent arising under this Agreement or the Loan DocumentsObligations;
(bii) Subject accounts payable to 8.9, Subordinated Debt in an aggregate outstanding principal amount not to exceed $15,000,000;
(c) 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 date hereof, together with any renewals, extensions or refinancings thereof on terms which are not materially different than those in effect as of the date hereof;
(d) Current liabilities trade creditors incurred in the ordinary course of business and not incurred through more than sixty (i60) 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 servicesdays past due;
(eiii) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims Capitalized Lease Liabilities 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 and Indebtedness of the Borrowers secured by liens of carriers, warehousemen, mechanics and materialmen permitted by 8.2;
(f) Indebtedness in respect of judgments 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 any 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;
(g) Indebtedness rental of any Borrower with respect to guaranty, suretyship or indemnification obligations in connection with such Borrower's performance of services for its respective customers in the ordinary course of its business;
(h) [Intentionally omitted];
(i) Indebtedness of any Subsidiary owing to the Parent;
(j) Intercompany Indebtedness among the Subsidiaries;
(k) Indebtedness in respect of a 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 Borrowers shall not exceed $10,000,000 at any time;
(m) Indebtedness incurred in connection with the acquisition by the Borrowers of real or personal property, including Indebtedness in respect of non-compete payments; provided property for the Systems that the aggregate outstanding principal amount of such Indebtedness of the Borrowers shall not exceed $15,000,000 at any time;
(nA) 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 are entered in the ordinary course of business of the BorrowersSystems, provided that and (B) either (1) are budgeted for under an Operating Budget approved in accordance with the terms of this Agreement and clearly indicated as Capitalized Lease Liabilities in such budget or (2) do not entail payments to the lessors in excess of five hundred thousand Dollars ($500,000) in the aggregate amount for all Systems in any one fiscal year;
(iv) Indebtedness related to the purchase of the discrete items of personal property contemplated in Section 7.02(b)(vii); provided, that all amounts secured by such agreements do Liens are paid when due and paid in full within three (3) months of the date such Lien attaches;
(v) unsecured Indebtedness for working capital and other general corporate purposes of the Borrower that is subordinate in priority of payment to the Loans and that does not exceed exceed, in the aggregate, five hundred thousand Dollars ($500,000, the maturity of such agreements do not exceed six (6) months, the terms are consistent at any one time outstanding with past practices respect to all of the BorrowersSystems, and such agreements are entered into to be paid solely from cash available for distributions in accordance with the Agent tenth priority of Section 4.2(c) of the Accounts Agreement;
(vi) Indebtedness owed by the Borrower to the Parent or any Bank and secured by Affiliate thereof that is subordinated in writing on terms satisfactory to the CollateralLender, in its sole discretion, to be paid solely from cash available for distributions in accordance with the tenth priority of Section 4.2(c) of the Accounts Agreement; and
(pvii) Indebtedness under Secured Rate Contracts contemplated in respect of interest rate protection arrangements satisfactory to the Agent entered into with the Agent or any Bank and secured by the CollateralSection 7.01(t) (Rate Contracts).
Appears in 1 contract
Sources: Credit Agreement (Bloom Energy Corp)
Restrictions on Indebtedness. None of the Borrowers shall become The Borrower will not, and will not permit any Guarantor or be a guarantor or surety oftheir respective Subsidiaries to, or 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 Banks and the Agent Lenders arising under this Agreement or any of the Loan Documents;
(b) Subject Indebtedness to 8.9, Subordinated Debt the Lender Hedge Providers in an aggregate outstanding principal amount not to exceed $15,000,000respect of any Hedge Obligations;
(c) 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 current liabilities of the date hereofBorrower, together with any renewals, extensions the Guarantor or refinancings thereof on terms which are not materially different than those in effect as of the date hereof;
(d) Current liabilities 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;
(ed) 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 and Indebtedness of the Borrowers secured by liens of carriers, warehousemen, mechanics and materialmen permitted by 8.2§7.8;
(fe) Indebtedness in respect of judgments or awards which have been only to the extent, for the period and for an amount not resulting in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect Event of which any 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 reservesDefault;
(gf) Indebtedness endorsements for collection, deposit or negotiation and warranties of any Borrower with respect to guarantyproducts or services, suretyship or indemnification obligations in connection with such Borrower's performance of services for its respective customers each case incurred in the ordinary course of its business;; and
(hg) [Intentionally omitted];
(i) subject to the provisions of §9, Indebtedness of any Subsidiary owing to the Parent;
(j) Intercompany Indebtedness among the Subsidiaries;
(k) Indebtedness REIT and Borrower in respect of a letter of credit issued by Allbank Bank in the face amount of $168,000; provided Derivatives Contracts 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 Borrowers shall not exceed $10,000,000 at any time;
(m) Indebtedness incurred in connection with the acquisition by the Borrowers of real or personal property, including Indebtedness in respect of non-compete payments; provided that 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 are entered into in the ordinary course of business and not for speculative purposes;
(h) subject to the provisions of the Borrowers§9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such agreements do Indebtedness shall not exceed $500,000twenty percent (20.0%) of Gross Asset Value to and including May , 2015, and fifteen percent (15.0%) at any time thereafter;
(i) subject to the maturity provisions of §9, Secured Debt, provided that the aggregate amount of such agreements do Secured Debt shall not exceed six thirty five percent (635.0%) months, the terms are consistent with past practices of the Borrowers, and such agreements are entered into with the Agent or any Bank and secured by the CollateralGross Asset Value; and
(pj) unsecured Indebtedness in respect of interest rate protection arrangements satisfactory Subsidiaries of Borrower to Borrower; provided that any such Indebtedness of a Subsidiary of Borrower that is a Guarantor shall be subordinate to the Agent entered into with repayment of the Agent Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(g), (h) and (i) above shall have any of the Unencumbered Pool Properties or any Bank 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, (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; and secured by (z) no Subsidiary of Borrower which directly or indirectly owns 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 CollateralLenders arising under the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Carter Validus Mission Critical REIT, Inc.)
Restrictions on Indebtedness. None The Borrower will not, and will not permit any of the Borrowers shall become or be a guarantor or surety ofits Subsidiaries to, or 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 Banks and the Agent arising under this Agreement any of the Loan Documents or the Loan DocumentsGuaranteed Credit Agreement;
(b) Subject to 8.9endorsements for collection, Subordinated Debt deposit or negotiation and warranties of products or services, in an aggregate outstanding principal amount not to exceed $15,000,000;
(c) 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 date hereof, together with any renewals, extensions or refinancings thereof on terms which are not materially different than those in effect as of the date hereof;
(d) Current liabilities each case incurred in the ordinary course of 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;
(e) 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 and Indebtedness of the Borrowers secured by liens of carriers, warehousemen, mechanics and materialmen permitted by 8.2;
(f) Indebtedness in respect of judgments 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 any 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;
(g) Indebtedness of any Borrower with respect to guaranty, suretyship or indemnification obligations in connection with such Borrower's performance of services for its respective customers in the ordinary course of its business;
(h) [Intentionally omitted];
(i) Indebtedness of any Subsidiary owing to the Parent;
(j) Intercompany Indebtedness among the Subsidiaries;
(k) Indebtedness in respect of a 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;
(lc) Indebtedness incurred in connection with the acquisition after the date hereof of any real or personal property by the Borrowers Borrower or such Subsidiary or under any lease; Capitalized Lease, provided that the aggregate outstanding principal amount of such Indebtedness of the Borrowers Borrower and its Subsidiaries shall not exceed the aggregate amount of $10,000,000 1,000,000 at any one time;
(md) Indebtedness incurred in connection with existing on the acquisition by date of this Credit Agreement and listed and described on Schedule 9.1 hereto;
(e) Indebtedness of a Subsidiary of the Borrowers Borrower to the Borrower so long as such Subsidiary has guaranteed all the Obligations hereunder pursuant to the Guaranty;
(f) Indebtedness of real or personal property, including Indebtedness the Borrower in respect of non-compete paymentsSeller Subordinated Debt; provided that the aggregate outstanding principal amount of such Indebtedness of the Borrowers shall not exceed $15,000,000 at any time;and
(ng) other unsecured Indebtedness not otherwise expressly permitted pursuant to this ss.9.1 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 of the Borrowers, provided that the aggregate amount of such agreements do not exceed $500,000, the maturity of such agreements do not exceed six (6) months, the terms are consistent with past practices of the Borrowers, and such agreements are entered into with the Agent or any Bank and secured by the Collateral; and
(p) Indebtedness in respect of interest rate protection arrangements satisfactory to the Agent entered into with the Agent or any Bank and secured by the Collateral.
Appears in 1 contract
Restrictions on Indebtedness. None of the Borrowers The Borrower shall become or be a guarantor or surety of, or otherwise not ---------------------------- 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 Banks and the Agent Lenders arising under this Agreement or any of the Loan Documents;
(b) Subject to 8.9, Subordinated Debt in an aggregate Indebtedness owing under the Nortel Loan Agreement and other Indebtedness outstanding principal amount not to exceed $15,000,000under a Permitted Loan Agreement;
(c) Existing Indebtedness with respect the proceeds of which are used
(i) to loans and capitalized leases listed on Schedule 8.1(crepay up to * aggregate principal amount of Tranche C Loans (as defined in the Nortel Loan Agreement),
(ii) hereto in an to repay up to * aggregate principal amount of Tranche C Advances, and/or
(iii) to prepay Tranche A Advances pursuant to (S)3.02(c), but only so long as
(A) the aggregate principal amount of such Indebtedness does not to exceed $7,500,000, on the terms and conditions in effect as aggregate principal amount of the date hereofIndebtedness then being prepaid or repaid with such proceeds, together with any renewalsin whole or in part, extensions or refinancings thereof on terms which are not materially different than those in effect as and
(B) no portion of the date hereofprincipal amount of such Indebtedness is scheduled to be repaid or has required prepayments prior to the Tranche A Advance Maturity Date or the Tranche B Advance Maturity Date;
(d) Current liabilities incurred in the ordinary course of 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 servicesSubordinated Debt;
(e) 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 and Indebtedness of the Borrowers secured by liens of carriers, warehousemen, mechanics and materialmen permitted by 8.2;
(f) Indebtedness in respect of judgments 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 any 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;
(g) Indebtedness of any Borrower with respect to guaranty, suretyship or indemnification obligations in connection with such Borrower's performance of services for its respective customers in the ordinary course of its business;
(h) [Intentionally omitted];
(i) Indebtedness of (in addition to any Subsidiary owing to the Parent;
purchase-money Indebtedness described in clauses (jii) Intercompany Indebtedness among the Subsidiaries;
and (kiii) Indebtedness in respect of a letter of credit issued by Allbank Bank in the face below)in an aggregate principal 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 not exceeding * incurred in connection with the acquisition after purchase and installation of equipment to be used in the date hereof New York PCS Network that is supplied by suppliers that are not Affiliates of any personal property by the Borrowers under any lease; provided that the aggregate outstanding principal amount of Borrower, but only so long as such Indebtedness is not in excess of the Borrowers shall not exceed $10,000,000 at any time;
(m) Indebtedness incurred in connection fair value of the property being acquired and related services associated with the acquisition by the Borrowers of real or personal property, including Indebtedness in respect of non-compete payments; provided that the aggregate outstanding principal amount of such Indebtedness of the Borrowers shall not exceed $15,000,000 at any timeequipment;
(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 of the Borrowers, provided that the aggregate amount of such agreements do not exceed $500,000, the maturity of such agreements do not exceed six (6) months, the terms are consistent with past practices of the Borrowers, and such agreements are entered into with the Agent or any Bank and secured by the Collateral; and
(p) Indebtedness in respect of interest rate protection arrangements satisfactory to the Agent entered into with the Agent or any Bank and secured by the Collateral.
Appears in 1 contract
Sources: Loan Agreement (Omnipoint Corp \De\)
Restrictions on Indebtedness. None of The Borrower and the Borrowers shall become or be a guarantor or surety ofGuarantors may, or otherwise and may permit their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liableliable for, contingently or otherwise, any Indebtedness other than the specific Indebtedness which is prohibited under this ss.8.1 and with respect to which each of the Borrower and the Guarantors will not, and will not permit any IndebtednessOperating Subsidiary or wholly-owned Subsidiary to, or become create, incur, assume, guarantee or be responsible in any manner (whether by agreement to purchase any obligationsor remain liable for, stock, assets, goods or services, or to supply or advance any funds, assets, goods or services contingently or otherwise) with respect to any undertaking , singularly or Indebtedness of any other Person, or incur any Indebtedness other thanin the aggregate as follows:
(a) Unsecured Indebtedness to (excluding the Banks Obligations) which is incurred under a revolving credit facility with a commercial bank, trust company, or savings and the Agent arising under this Agreement or the Loan Documentsloan association;
(b) Subject to 8.9, Subordinated Debt Indebtedness which would result in an aggregate outstanding principal amount not to exceed $15,000,000a Default or Event of Default under ss.9 hereof;
(c) Existing Indebtedness with respect to loans and capitalized leases listed on Schedule 8.1(c) hereto in an An aggregate amount not to exceed in excess of $7,500,000, on the terms and conditions in effect as of the date hereof, together with 5,000,000 at any renewals, extensions or refinancings thereof on terms which are not materially different than those in effect as of the date hereof;
(d) Current liabilities incurred in the ordinary course of 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;
(e) Indebtedness one time in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that (other than in respect of properties owned by Partially-Owned Real Estate Holding Entities) for which payment therefor shall not at the time be is required to be made in accordance with the provisions of 7.8 ss.7.9 and Indebtedness of the Borrowers secured by liens of carriers, warehousemen, mechanics and materialmen permitted by 8.2has not been timely made;
(fd) Indebtedness An aggregate amount in excess of $1,000,000 at any one time in respect of uninsured judgments or awards, with respect to which the applicable periods for taking appeals have expired, or with respect to which final and unappealable judgments or awards which have been in force rendered, and such judgments or awards remain unpaid for less more than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which any 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;thirty (30) days; and
(ge) Indebtedness of any Borrower with respect to guaranty, suretyship or indemnification obligations in connection with such Borrower's performance of services for its respective customers Current unsecured liabilities incurred in the ordinary course of its business;
(h) [Intentionally omitted];
, which (i) Indebtedness are overdue for more than sixty (60) days, (ii) exceed $1,000,000 in the aggregate at any one time, and (iii) are not being contested in good faith. The terms and provisions of any Subsidiary owing this ss.8.1 are in addition to, and not in limitation of, the covenants set forth in ss.9 of this Agreement. Without limiting the foregoing, but subject to the Parent;
other provisions of this Agreement (j) Intercompany including without limitation ss.9 hereof), Indebtedness among Without Recourse to any of the Subsidiaries;
(k) Indebtedness in respect Credit Parties or any of a letter of credit issued by Allbank Bank their respective assets other than their respective interests in the face amount of $168,000; provided Real Estate Assets that if are subject to such Indebtedness Without Recourse is not restricted. Notwithstanding anything contained herein to the Agent, in its sole and absolute discretion, at any time and for any reason so requestscontrary, the Borrowers shall promptly replace such letter of credit Borrower and the Guarantors will not, and will not permit any Operating Subsidiary or any wholly-owned Subsidiary to, incur any Indebtedness for borrowed money which, together with a Letter of Credit issued other Indebtedness for borrowed money incurred by the Agent pursuant Borrower, any Guarantor, any Operating Subsidiary and any wholly-owned Subsidiary since the date of the most recent compliance certificate delivered 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 Borrowers shall not exceed $10,000,000 at any time;
(m) Indebtedness incurred in connection with the acquisition by the Borrowers of real or personal property, including Indebtedness in respect of non-compete payments; provided that 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 Agent in accordance with the terms of the Clinton Lease;
(o) Indebtedness under fuel price swapsthis Agreement, 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 exceeds $5,000,000 in the ordinary course aggregate unless the Borrower shall have delivered a compliance certificate in the form of business of the Borrowers, provided that the aggregate amount of such agreements do not exceed $500,000, the maturity of such agreements do not exceed six (6) months, the terms are consistent with past practices of the Borrowers, and such agreements are entered into with the Agent or any Bank and secured by the Collateral; and
(p) Indebtedness in respect of interest rate protection arrangements satisfactory Exhibit D hereto to the Agent entered into with evidencing covenant compliance at the Agent or any Bank time of delivery of the certificate and secured by the Collateralon a pro-forma basis after giving effect to such proposed Indebtedness.
Appears in 1 contract
Restrictions on Indebtedness. None of the Borrowers shall become or be a guarantor or surety of, or otherwise createCreate, 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 Banks Agent and the Agent Lenders (and their respective Affiliates) arising under this Agreement or any of the Loan Documents;
(b) Subject to 8.9, Subordinated Debt in an aggregate outstanding principal amount not to exceed $15,000,000Indebtedness arising under the Revolving Credit Agreement;
(c) 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 current liabilities of the date hereof, together with any renewals, extensions or refinancings thereof on terms which are not materially different than those in effect as of the date hereof;
(d) Current liabilities Borrower incurred in the ordinary course of business 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;
(ed) 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 7.8 and §8.9 (but including, in any event, any Indebtedness of the Borrowers secured by liens of carriers, warehousemen, mechanics and materialmen permitted by 8.2an M&M Lien);
(fe) 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 or awards which 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 any Borrower shall which, at the time in time, a good faith be prosecuting an appeal or proceedings proceeding for review is being prosecuted, and in respect of which a stay of execution shall have been obtained pending such appeal or review and review;
(f) endorsements for collection, deposit or negotiation incurred in respect the ordinary course of which the Borrowers have maintained adequate reservesbusiness;
(g) 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 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 respect to guarantythe proceeds of such Indebtedness, suretyship and (ii) at the time any such Indebtedness is incurred and after giving effect thereto, there exists no Default or indemnification obligations in connection with such Borrower's performance Event of services for its respective customers in the ordinary course of its businessDefault hereunder;
(h) [Intentionally omitted]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 any Subsidiary owing to Whitestone OP for the Parent;
purchase price of capital assets (j) Intercompany Indebtedness among the Subsidiaries;
(k) Indebtedness in respect of a 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 Borrowers shall not exceed $10,000,000 at any time;
(m) Indebtedness incurred in connection with the acquisition by the Borrowers of real or personal property, other than Real Estate Assets but including Indebtedness in respect of non-compete payments; provided that the aggregate outstanding principal amount of such Indebtedness of the Borrowers shall not exceed $15,000,000 at any time;
(nCapitalized Leases) 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 incurred in the ordinary course of business of the Borrowersbusiness, provided that the aggregate principal amount of such agreements do Indebtedness permitted by this clause (i) shall not exceed $500,000, the maturity of such agreements do not exceed six (6) months, the terms are consistent with past practices of the Borrowers, and such agreements are entered into with the Agent or 500,000 at any Bank and secured by the Collateraltime outstanding; and
(pj) Recourse Indebtedness of Whitestone OP incurred after the Closing Date (other than Indebtedness relating to or affecting the Project) in connection with the purchase of or the construction of or renovation of improvements on any Real Estate Asset, provided that (i) the aggregate principal amount of Indebtedness permitted by this clause (i) shall not exceed $40,000,000 at any time outstanding, and (ii) at the time any such Indebtedness is incurred and after giving effect thereto, there exists no Default or Event of Default hereunder. Notwithstanding the foregoing, in no event shall the Borrower, the Trust or any of their respective Subsidiaries incur or have outstanding (i) unhedged variable rate Indebtedness in respect excess of interest rate protection arrangements satisfactory fifty percent (50%) of Consolidated Total Indebtedness, or (ii) any 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 Agent entered into with Borrower or the Agent Trust, or any Bank of their respective assets. The terms and secured by provisions of this §9.1 are in addition to, and not in limitation of, the Collateralcovenants set forth in §10.
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Restrictions on Indebtedness. None of the Borrowers shall become Create, incur, suffer or be a guarantor permit to exist, or surety ofassume or guarantee, either directly or indirectly, or otherwise create, incur, assume, or be become or remain liable, contingently or otherwise, liable with respect to 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 thanexcept the following:
(a) Indebtedness of URC and its Subsidiaries referred to the Banks and the Agent arising under this Agreement or the Loan Documentsin SCHEDULE 5.16;
(b) Subject to 8.9, Subordinated Debt Indebtedness on account of Consolidated Current Liabilities (other than for money borrowed) incurred in an aggregate outstanding principal amount not to exceed $15,000,000the normal and ordinary course of business;
(c) 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 date hereof, together with any renewals, extensions or refinancings thereof on terms which are not materially different than those in effect as of the date hereof;
(d) Current liabilities incurred in the ordinary course of 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;
(e) Indebtedness in respect of (i) taxes, 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 and Indebtedness of the Borrowers secured by liens of carriersSection 8.2 hereof, warehousemen, mechanics and materialmen permitted by 8.2;
(fii) Indebtedness in respect of judgments or awards which have been in force for less than the applicable appeal period for taking an appeal so long as execution is not levied thereunder or in respect of which URC or any Borrower 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 review, and in respect of which the Borrowers have maintained adequate reserves;
(giii) Indebtedness of any Borrower with respect to guaranty, suretyship or indemnification obligations endorsements made in connection with such Borrower's performance the deposit of services items for its respective customers credit or collection in the ordinary course of its business;
(hd) [Intentionally omitted]Subordinated Indebtedness;
(ie) Indebtedness of any Subsidiary owing to the ParentGuarantees permitted under Section 9.5;
(jf) Intercompany Indebtedness among the Subsidiaries;
(k) Indebtedness in respect of a 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 Borrowers shall not exceed $10,000,000 at any time;
(m) Indebtedness incurred in connection with the acquisition by the Borrowers of real or personal property, including Indebtedness in respect of non-compete payments; provided that the aggregate outstanding principal amount of such Indebtedness of the Borrowers shall not exceed $15,000,000 at any time;
(n) other Indebtedness in an aggregate amount not to exceed $10,501,284 payable to Clinton County7,500,000, New York under and in accordance with so long as on the terms of the Clinton Lease;
(o) Indebtedness under fuel price swaps, fuel price caps, and fuel price collar date URC or floor agreements, and similar agreements or arrangements designed to protect against or manage fluctuations in fuel prices any Subsidiary becomes liable with respect to fuel purchased in such other Indebtedness and immediately after giving effect thereto and to the ordinary course concurrent retirement of business of the Borrowersany other Indebtedness, provided that the aggregate amount of such agreements do not exceed $500,000, the maturity of such agreements do not exceed six (6) months, the terms are consistent with past practices of the Borrowers, and such agreements are entered into with the Agent or any Bank and secured by the Collateralthere shall be no Default hereunder; and
(pg) Indebtedness in respect of interest rate protection arrangements satisfactory to the Agent entered into with and Banks hereunder and under the Agent or any Notes and the other Bank and secured by the CollateralAgreements.
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Sources: Revolving Credit and Term Loan Agreement (Uno Restaurant Corp)
Restrictions on Indebtedness. None of The Borrower and the Borrowers shall become or be a guarantor or surety ofGuarantors will not, or otherwise and will not permit their respective Subsidiaries to, 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 Banks and the Agent Lenders arising under this Agreement or any of the Loan Documents;
(b) Subject Indebtedness to 8.9, Subordinated Debt the Lender Hedge Providers in an aggregate outstanding principal amount not to exceed $15,000,000respect of any Hedge Obligations;
(c) 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 current liabilities of the date hereofBorrower, together with any renewals, extensions the Guarantors or refinancings thereof on terms which are not materially different than those in effect as of the date hereof;
(d) Current liabilities 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;
(ed) 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 §7.8 and Indebtedness of the Borrowers secured by liens of carriersor §8.20, warehousemen, mechanics and materialmen permitted by 8.2as applicable;
(e) [Intentionally Omitted.]
(f) Indebtedness endorsements for collection, deposit or negotiation incurred in respect the ordinary course of judgments 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 any 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 reservesbusiness;
(g) subject to the provisions of §9, Secured Debt, provided that (A) the aggregate amount of Secured Debt shall not exceed forty percent (40%) of Gross Asset Value; provided, however, that for one or more periods of up to four (4) consecutive fiscal quarters immediately following each Material Acquisition of which Borrower has given Agent written notice (with such four (4) consecutive fiscal quarter period to include the quarter in which such Material Acquisition is consummated), such 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 Obligations to the extent ever secured hereunder) shall not exceed fifteen percent (15%) of any Borrower Gross Asset Value, and (2) the aggregate amount of Capitalized Lease Obligations of Parent Company and its Subsidiaries with respect to guaranty, suretyship or indemnification obligations in connection with such Borrower's performance any of services for its respective customers in the ordinary course of its businessUnencumbered Asset Pool Properties shall not exceed $45,000,000.00;
(h) [Intentionally omittedOmitted.];
(i) Indebtedness of any Subsidiary owing to the Parent;[Intentionally Omitted.]
(j) Intercompany Indebtedness among the Subsidiaries;[Intentionally Omitted]; and
(k) subject to the provisions of §9, Unsecured Debt of the REIT or Subsidiaries of the REIT that are not Initial Subsidiary Guarantors or Additional Subsidiary Guarantors (or any direct or indirect owners of such Subsidiaries), provided that the Initial Subsidiary Guarantors and the Additional Subsidiary Guarantors may incur Unsecured Debt only if it has the Unencumbered Asset Pool Properties as a borrowing base or the documents evidencing same contain a covenant substantially similar to Section 4.12 of the Indenture. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in respect §8.1(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 a letter 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, asset pool or any similar form of credit issued by Allbank Bank in the face amount of $168,000; support for such Indebtedness (provided that if the Agentforegoing shall not preclude Subsidiaries of the Parent Company (other than a Subsidiary Guarantor that either (A) owns, in its sole and absolute discretiondirectly or indirectly, at an Unencumbered Asset Pool Property, or (B) that directly or indirectly provides services to an Unencumbered Asset Pool Property (or any time and for any reason so requests, the Borrowers shall promptly replace direct or indirect owners of such letter of credit with a Letter of Credit issued by the Agent pursuant Subsidiaries)) to incur Non-Recourse Indebtedness subject to the terms of this Credit Agreement;
(l) Indebtedness incurred in connection with §8.1 or recourse to 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 general credit of the Borrowers shall not exceed $10,000,000 at any time;
(m) Indebtedness incurred in connection with Parent Company or the acquisition by the Borrowers of real or personal property, including Indebtedness in respect of non-compete payments; provided that 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 capsBorrower), and fuel price collar (ii) neither REIT nor any Subsidiary Guarantor that (A) either owns, directly or floor agreementsindirectly, and similar agreements an Unencumbered Asset Pool Property, or arrangements designed (B) that directly or indirectly provides services to protect against an Unencumbered Asset Pool Property, shall create, incur, assume, guarantee or manage fluctuations in fuel prices be or remain liable, contingently or otherwise, with respect to fuel purchased 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 described in the ordinary course of business of the Borrowers§§8.1(a)-(d), provided that the aggregate amount of such agreements do (f) and (k) above and Capitalized Lease Obligations not exceed $500,000, the maturity of such agreements do not exceed six (6otherwise prohibited by §8.1(g) months, the terms are consistent with past practices of the Borrowers, and such agreements are entered into with the Agent or any Bank and secured by the Collateral; and
(p) Indebtedness in respect of interest rate protection arrangements satisfactory to the Agent entered into with the Agent or any Bank and secured by the Collateralabove.
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Restrictions on Indebtedness. None The Borrower will not, and will not permit any of the Borrowers shall become or be a guarantor or surety ofits Subsidiaries to, or 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 Banks and the Agent arising under this Agreement or any of the Loan Documents;
(b) Subject Indebtedness of the Borrower to 8.9, Subordinated Debt any Subsidiary and any Subsidiary to the Borrower or any other Subsidiary to the extent the Indebtedness referred to in an aggregate outstanding principal amount not to exceed $15,000,000this §9.1(b) evidences a loan or advance permitted under §9.3;
(c) Existing Indebtedness with respect to loans consisting of reimbursement obligations under surety, indemnity, performance, release and capitalized leases listed on Schedule 8.1(c) hereto in an aggregate amount not to exceed $7,500,000, on the terms appeal bonds and conditions in effect as guarantees thereof and letters of the date hereof, together with any renewals, extensions or refinancings thereof on terms which are not materially different than those in effect as of the date hereof;
(d) Current liabilities incurred credit required in the ordinary course of 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 the enforcement of goods rights or claims of the Borrower or its Subsidiaries, in each case to the extent a Letter of Credit supports in whole or in part the obligations of the Borrower and servicesits Subsidiaries with respect to such bonds, guarantees and letters of credit;
(d) Subordinated Debt;
(e) Indebtedness in respect of taxesCapitalized Leases, assessmentsSynthetic Leases and purchase money obligations for fixed or capital assets, governmental charges or levies and claims for laborif subject to a Lien permitted by §9.2.1(iv), materials and supplies to within the extent that payment therefor shall not at limitations set forth in such §9.2.1(iv); provided, however, the time be required to be made in accordance with the provisions aggregate amount of 7.8 and such Indebtedness of the Borrowers secured by liens Borrower and its Subsidiaries shall not exceed the aggregate amount of carriers, warehousemen, mechanics and materialmen permitted by 8.2$15,000,000 at any one time;
(f) Indebtedness permitted by §9.10 in respect of judgments 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 any 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 reservesHedging Agreements;
(g) Indebtedness existing on the date hereof and listed and described on Schedule 9.1 hereto including any extension or renewals or refinancing thereof, provided the principal amount thereof is not increased;
(h) Indebtedness consisting of any guarantees by the Borrower with respect to guaranty, suretyship or indemnification obligations in connection with such Borrower's performance of services for and its respective customers Subsidiaries incurred in the ordinary course of its business;
(h) [Intentionally omitted];
(i) Indebtedness of any Subsidiary owing to the Parent;
(j) Intercompany Indebtedness among the Subsidiaries;
(k) Indebtedness in respect of a 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 business 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 Borrowers shall not exceed $10,000,000 at any time;
(m) Indebtedness incurred in connection with the acquisition by the Borrowers of real or personal property, including Indebtedness in respect of non-compete payments; provided that 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 Lease15,000,000 at any one time;
(oi) Indebtedness under fuel consisting of the Subsidiary Guaranties;
(j) Indebtedness consisting of guarantees of the Borrower and the Subsidiary Guarantors in respect of Indebtedness otherwise permitted hereunder of the Borrower or any wholly-owned Subsidiary of the Borrower;
(k) Indebtedness owed to a seller as part of the purchase price swaps, fuel price caps, and fuel price collar in connection with a Permitted Acquisition or floor agreements, and similar agreements or arrangements designed that (i) relates to protect against or manage fluctuations in fuel prices the customary post-closing adjustments with respect to fuel purchased accounts receivable, accounts payable, net worth and/or similar items typically subject to post-closing adjustments in similar transactions, and are outstanding for a period of two (2) years or less following the creation thereof or (ii) relates to indemnities granted to the seller in the ordinary course of business of the Borrowers, provided that the aggregate amount of such agreements do not exceed $500,000, the maturity of such agreements do not exceed six (6) months, the terms are consistent with past practices of the Borrowers, and such agreements are entered into with the Agent or any Bank and secured by the Collateraltransaction; and
(pl) Indebtedness in respect of interest rate protection arrangements satisfactory pursuant to the Agent entered into with the Agent or any Bank and secured by the CollateralExisting Credit Agreement.
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