Total Indebtedness. Create, incur, assume, or suffer to exist, or permit any of its Subsidiaries to create, incur or suffer to exist, any Indebtedness, except: (i) Obligations owing to Agent or any Lender under this Agreement or any of the other Loan Documents; (ii) Indebtedness evidenced by the Subordinated Bonds and the other Subordinated Bond Documents (each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6, subject to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for in the Subordinated Bonds; (iii) Indebtedness evidenced by the Secured Bonds and the other Secured Bond Documents, each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6 (subject to clause (xiii) below); (iv) Indebtedness, including without limitation Subordinated Debt and intercompany indebtedness, existing as of the date of this Agreement and listed on Exhibit 8.2.3; (v) Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Line; (vi) contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business; (vii) guaranties of any Indebtedness permitted under this subsection 8.2.3; (viii) Indebtedness in respect of Intercompany Loans; (ix) unsecured Derivative Obligations incurred in the ordinary course of business in respect of the Loans hereunder; (x) [intentionally omitted]; (xi) Indebtedness incurred in the ordinary course of business with respect to surety and appeal bonds, performance bonds and other similar obligations not to exceed $2,000,000 in the aggregate at any time outstanding; (xii) Indebtedness not included in paragraphs (i) through (xi) above which does not exceed at any time, in the aggregate, $15,000,000; (xiii) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and (xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,000.
Appears in 3 contracts
Samples: Loan and Security Agreement (Neenah Foundry Co), Loan and Security Agreement (Neenah Foundry Co), Loan and Security Agreement (Neenah Foundry Co)
Total Indebtedness. Create, incur, assume, or suffer to exist, or permit any Subsidiary of its Subsidiaries Borrower to create, incur or suffer to exist, any Indebtedness, except:
(i) Obligations owing to Agent or any Lender under this Agreement or any of the other Loan Documentsand Lenders;
(ii) Indebtedness evidenced by the Subordinated Bonds and the other Subordinated Bond Documents (each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6, subject any Subsidiary of Borrower to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for in the Subordinated BondsBorrower;
(iii) Indebtedness evidenced accounts payable to trade creditors and current operating expenses (other than for Funded Debt) which are not aged more than 30 days from the due date, in each case incurred in the ordinary course of business and paid within such time period, unless the same are being actively contested in good faith and by the Secured Bonds appropriate and the other Secured Bond Documentslawful proceedings; and Borrower or such Subsidiary shall have set aside such reserves, each if any, with respect thereto as in effect as of the date hereof are required by GAAP and deemed adequate by Borrower or as modified in compliance with subsection 8.2.6 (subject to clause (xiii) below)such Subsidiary and its independent accountants;
(iv) Indebtedness, including without limitation Subordinated Debt and intercompany indebtedness, existing as of the date of this Agreement and listed on Exhibit 8.2.3Obligations to pay Rentals permitted by Section 8.2.18;
(v) Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Line;
(vi) contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(vii) guaranties of any Indebtedness permitted under this subsection 8.2.3Capitalized Leases listed on Exhibit 7.1.22;
(viii) Indebtedness incurred in respect of Intercompany Loansconnection with performance bonds, workmen’s compensation bonds or the like;
(ix) unsecured Derivative Obligations incurred in Indebtedness under the ordinary course leases of business in respect of the Loans hereunderBorrower’s manufacturing plants at 0000 Xxxxxx Xxx, Xxxxxx, Xxxxxx and at 000 Xxxx Xxxxxx X, Xxxxxx, Xxxxx;
(x) [intentionally omitted]Indebtedness under the leases of real Property at 0000 Xxxx xx Xxxxxx Xxxx, Xxxxxx, Xxxxxxxxxx, 0000 Xxxxxx 000, Xxxxxxx, Xxxxxxxxxx and 0000 Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxx;
(xi) Indebtedness incurred in under the ordinary course of business with respect to surety Sale and appeal bonds, performance bonds and other similar obligations not to exceed $2,000,000 in the aggregate at any time outstandingLeaseback Documents;
(xii) Permitted Indebtedness; and
(xiii) Indebtedness not included in paragraphs (i) through (xixii) above which does not exceed at any time, in the aggregate, $15,000,000;
(xiii) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,0001,000,000.
Appears in 2 contracts
Samples: Loan and Security Agreement (Pw Eagle Inc), Loan and Security Agreement (Pw Eagle Inc)
Total Indebtedness. Create, incur, assume, or suffer to exist, or permit any of its Subsidiaries Restricted Subsidiary to create, incur or suffer to exist, any Indebtedness, except:
(i) Obligations owing to Agent or any Lender under this Agreement or any of the other Loan Documents;
(ii) Indebtedness evidenced by the Subordinated Bonds and the other Subordinated Bond Documents (each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6, subject to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for in the Subordinated Bonds;
(iii) Indebtedness evidenced by the Secured Bonds and the other Secured Bond Documents, each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6 (subject to clause (xiii) below);
(iv) Indebtedness, including without limitation Subordinated Debt and intercompany indebtednessDebt, existing as of on the date of this Agreement and listed on Exhibit 8.2.38.2.3 or otherwise approved by Majority Lenders;
(viii) Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness, including without limitation such Indebtedness incurred in connection with a sale and leaseback transaction that is permitted under subsection 8.2.9(v), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Line;
(viiv) contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(viiv) guaranties Guaranties of any Indebtedness permitted under this subsection 8.2.3;
(viiivi) Indebtedness in respect of Intercompany Loansloans permitted to be made under subsection 8.2.2;
(ixvii) unsecured Derivative Obligations incurred to the extent not included above, trade payables, accruals and accounts payable in the ordinary course of business (in each case to the extent not overdue) not for Money Borrowed;
(viii) Derivative Obligations incurred in order to protect against (a) price fluctuations with respect to materials used in the business of the Borrower or Restricted Subsidiary that has incurred the same, (b) fluctuations in interest rates or (c) fluctuations in foreign exchange rates; provided, that Bank shall have had a reasonable opportunity to bid to provide such Derivative Obligations to such Borrower or Restricted Subsidiary;
(ix) Indebtedness in respect of incentive arrangements and stock appreciation rights relating to management retention practices in the Loans hereunderordinary course of a Borrower's or a Restricted Subsidiary's business;
(x) [intentionally omitted]Indebtedness under the Jordan Agreements and the Jordan Transaction Advisory Agreement;
(xi) contingent liabilities and Indebtedness incurred assumed or issued in the ordinary course of business connection with respect to surety and appeal bonds, performance bonds and other similar obligations not to exceed $2,000,000 in the aggregate at any time outstandingan acquisition that is permitted under subsection 8.2.1;
(xii) reasonable indemnities provided in connection with dispositions permitted under subsection 8.2.9, in each case to the extent that the same have been negotiated on an arms'-length basis and do not exceed the consideration received by the applicable Borrower or Restricted Subsidiary in connection with such disposition;
(xiii) Subordinated Debt that is evidenced by a subordinated note in the form attached hereto as Exhibit 8.2.3(xiii) and the proceeds of which are used to make a Distribution permitted under subsection 8.2.7(iii);
(xiv) Indebtedness not included in paragraphs (i) through (xi) above which is secured by Liens on real Property incurred pursuant to the last sentence of Section 5.4 and which does not exceed at any time, time in the aggregate, aggregate (a) $15,000,000500,000 for any single Borrower or Restricted Subsidiary or (b) $1,000,000 for all Borrowers and Restricted Subsidiaries;
(xiiixv) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as 8.2.3 to the extent that (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, terms and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses conditions of such refinancing, (b) the any refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Restricted Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced), (eb) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes include subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (gc) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bondssecured, any such refinancing does not provide for Liens covering any Property other than that securing the Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms being refinanced;
(xvi) Indebtedness in respect of the Secured Bond Intercreditor AgreementExisting Intercompany Loans; and
(xivxvii) unsecured Indebtedness incurred where not included in paragraphs (ai) average Availability through (as determined by Agent xvi) above which does not exceed at any time in its reasonable credit judgment) the aggregate $500,000 for all Borrowers and Restricted Subsidiaries (but in all cases excluding Guaranties of the thirty (30) day period ending on the date obligations of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,000Unrestricted Subsidiary).
Appears in 2 contracts
Samples: Loan and Security Agreement (Kinetek Inc), Loan and Security Agreement (Kinetek Inc)
Total Indebtedness. Create, incur, assume, or suffer to exist, or permit any Subsidiary of its Subsidiaries any Borrower to create, incur or suffer to exist, any Indebtedness, except:
(ia) Obligations owing to Agent or Administrative Agent, Term Loan B Agent, any Lender or, in the case of Product Obligations, an Affiliate of a Revolving Credit Lender, under this Agreement or any of the other Loan Documents;
(iib) Indebtedness evidenced by the Subordinated Bonds (i) of Borrowers and the other Subordinated Bond Documents (each as in effect as of the date hereof their Domestic Subsidiaries existing or as modified in compliance with subsection 8.2.6, subject to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations incurred pursuant to the subordination provisions provided for in the Subordinated Bonds;
(iii) Indebtedness evidenced by the Secured Bonds and the other Secured Bond Documents, each as in effect as a line of the date hereof or as modified in compliance with subsection 8.2.6 (subject to clause (xiii) below);
(iv) Indebtedness, including without limitation Subordinated Debt and intercompany indebtedness, credit existing as of on the date of this Agreement and listed on Exhibit 8.2.38.2.3(i), (ii) of Foreign Subsidiaries existing or incurred pursuant to a line of credit existing on the date of this Agreement and listed on Exhibit 8.2.3(ii), and (iii) refinancings, extensions and renewals of the Indebtedness permitted under the immediately preceding clauses (i) and (ii), so long as the aggregate principal amount of Indebtedness permitted under each such clause is not increased;
(vc) Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Line;
(vid) Indebtedness pursuant to the New Senior Secured Notes;
(e) Indebtedness in respect of Derivative Agreements incurred in the ordinary course of business and consistent with prudent business practice with the aggregate Agreement Value for all such Derivative Agreements not to exceed $20,000,000 at any time outstanding, provided that a reserve shall be concurrently established and maintained against the Borrowing Base equal to the then outstanding Agreement Value for all such Derivative Agreements;
(f) contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(viig) guaranties of any Indebtedness permitted under this subsection 8.2.3hereunder other than guaranties by any Borrower or any Domestic Subsidiary of Indebtedness of any Foreign Subsidiary permitted hereunder (except any such guaranties existing on the date hereof and listed on Exhibit 8.2.3(i) and any refinancings, extensions and renewals thereof, so long as the aggregate principal amount of Indebtedness that is guaranteed is not increased);
(viiih) Indebtedness in respect of Intercompany Loansintercompany loans permitted under subsection 8.2.2(v);
(ixi) unsecured Derivative Obligations obligations to pay Rentals permitted by subsection 8.2.17;
(j) Indebtedness of any Foreign Subsidiary incurred for working capital purposes (including Capital Expenditures) of such Foreign Subsidiary and its Subsidiaries or in connection with a securitization of the accounts receivable of such Foreign Subsidiary and its Subsidiaries in an aggregate amount for all such Indebtedness not to exceed $40,000,000;
(k) to the extent not included above, trade payables, accruals, deferred income items and accounts payable in the ordinary course of business (in respect of each case to the Loans hereunder;extent not overdue) not for Money Borrowed; and
(xl) [intentionally omitted];
(xi) Indebtedness incurred in the ordinary course of business with respect to surety and appeal bonds, performance bonds and other similar obligations not to exceed $2,000,000 in the aggregate at any time outstanding;
(xii) unsecured Indebtedness not included in paragraphs (ia) through (xik) above which does not exceed at any time, in the aggregate, $15,000,000;
(xiii) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,00010,000,000.
Appears in 1 contract
Total Indebtedness. Create, incur, assume, or suffer to exist, or permit any Subsidiary of its Subsidiaries any Borrower to create, incur or suffer to exist, any Indebtedness, except:
(i) Obligations owing to Agent or any Lender under this Agreement or any of the other Loan DocumentsLender;
(ii) Indebtedness evidenced by Subordinated Debt outstanding in respect to and the Subordinated Bonds and the other Subordinated Bond Documents (each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6, subject to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for in the Subordinated BondsDebt Documents;
(iii) Indebtedness evidenced by the Secured Bonds and the other Secured Bond Documents, each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6 (subject any Subsidiary of any Borrower to clause (xiii) below)such Borrower;
(iv) Indebtednessaccounts payable to trade creditors and current operating expenses (other than for Money Borrowed) which are not aged more than 30 days from the due date, including without limitation Subordinated Debt in each case incurred in the ordinary course of business and intercompany indebtednesspaid within such time period, existing unless the same are being actively contested in good faith and by appropriate and lawful proceedings; and the applicable Borrowers or such Subsidiary shall have set aside such reserves, if any, with respect thereto as of are required by GAAP and deemed adequate by the date of this Agreement applicable Borrower or such Subsidiary and listed on Exhibit 8.2.3its independent accountants;
(v) Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of pay Rentals permitted by subsection 8.2.13;
(xvi) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Line;
(vivii) contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(vii) guaranties of any Indebtedness permitted under this subsection 8.2.3;
(viii) Indebtedness in respect of Intercompany LoansEPI to PPI and/or APP or Indebtedness of PPI and/or APP to EPI, to the extent any such Borrower was permitted to make such loan or advance pursuant to Section 8.2.2. above;
(ix) unsecured Derivative Obligations incurred in Indebtedness outstanding under the ordinary course of business in respect of the Loans hereunderHastings Documents;
(x) [intentionally omitted]Indebtedness outstanding under the Promissory Note and Stock Pledge Agreement;
(xi) Indebtedness incurred in the ordinary course of business with respect to surety and appeal bonds, performance bonds and other similar obligations not to exceed $2,000,000 in the aggregate at any time outstandingunder Capitalized Leases listed on Exhibit K;
(xii) Indebtedness incurred in connection with the acquisition of approximately 30 acres of vacant land in Xxxxxxx, Oregon, in a principal amount not to exceed One Hundred Three Thousand Dollars ($103,000); and
(xiii) Indebtedness not included in paragraphs (i) through (xixii) above which does not exceed at any time, in the aggregate, $15,000,000;
(xiii) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,000250,000.
Appears in 1 contract
Samples: Loan and Security Agreement (Eagle Pacific Industries Inc/Mn)
Total Indebtedness. Create, incur, assume, or suffer to exist, ------------------ or permit any Subsidiary of its Subsidiaries Borrower to create, incur or suffer to exist, any Indebtedness, except:
(i) Obligations owing to Agent or any Lender under this Agreement or any of the other Loan Documents;Lender,
(ii) Indebtedness evidenced by accounts payable to trade creditors and current operating expenses (including taxes but excluding Money Borrowed) which are not aged more than 60 days from billing date or more than 30 days from the Subordinated Bonds and the other Subordinated Bond Documents (due date, in each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6, subject to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for case incurred in the Subordinated Bondsordinary course of business and paid within such time period, unless the same are being actively contested in good faith and by appropriate and lawful proceedings; and Borrower or such Subsidiary shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrower or such Subsidiary and its interdependent accountants;
(iii) Indebtedness evidenced Obligations to pay Rentals permitted by the Secured Bonds and the other Secured Bond Documents, each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6 (subject to clause (xiii) below)7.2.12;
(iv) Permitted Purchase Money Indebtedness and Capitalized Lease Obligations, provided that the aggregate total thereof does not exceed the limitation set forth for Permitted Purchase Money Indebtedness in the definition of Permitted Purchase Money Indebtedness, including without limitation Subordinated Debt and intercompany indebtedness, existing as of the date of this Agreement and listed on Exhibit 8.2.3;
(v) Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Line;
(vi) contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(vi) the VA Debt;
(vii) guaranties unsecured Indebtedness of any Indebtedness permitted under this subsection 8.2.3wholly-owned Subsidiary of Borrower that is a Guarantor;
(viii) Indebtedness in respect of Intercompany Loansthe Podiatry Online Subordinated Debt;
(ix) unsecured Derivative Obligations incurred Subordinated Debt (other than the Podiatry Online Subordinated Debt) in an aggregate amount not to exceed $5,000,000 at any time;
(x) Rebates payable in the ordinary course of business to account debtors of Borrower based upon the volume of purchases by such account debtors, which rebates are based upon percentages and/or formulas no more favorable to such account debtors than the percentages and/or formulas in respect of effect on the Loans hereunder;
(x) [intentionally omitted]Closing Date;
(xi) Indebtedness incurred in the ordinary course of business with respect to surety and appeal bonds, performance bonds and other similar obligations not to exceed $2,000,000 in the aggregate at any time outstanding;Merginet Debt; and
(xii) Indebtedness not included in paragraphs (i) through (xi) above which does not exceed at any time, in the aggregate, $15,000,000;
(xiii) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending existing on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness hereof and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 listed and (b) actual Availability (as determined by Agent in its reasonable credit judgment) described on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,000.Schedule 7.2.3 hereto. --------------
Appears in 1 contract
Total Indebtedness. Create, incur, assume, or suffer to exist, ------------------ or permit any of its Subsidiaries Borrower to create, incur or suffer to exist, any Indebtedness, except:
(i) Obligations owing to Agent or any Lender under this Agreement or any of the other Loan DocumentsLender;
(ii) Indebtedness evidenced by the Subordinated Bonds and the other Subordinated Bond Documents (each as in effect as of Debt existing on the date hereof or as modified in compliance with subsection 8.2.6, subject to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for in the Subordinated Bondsof this Agreement;
(iii) Indebtedness evidenced by the Secured Bonds and the other Secured Bond Documents, each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6 (subject any Subsidiary of Borrower to clause (xiii) below)Borrower;
(iv) Indebtednessaccounts payable to trade creditors and current operating expenses (other than for Money Borrowed) which are not aged more than 120 days from billing date or more than 30 days from the due date, including without limitation Subordinated Debt in each case incurred in the ordinary course of business and intercompany indebtednesspaid within such time period, existing unless the same are being actively contested in good faith and by appropriate and lawful proceedings; and Borrower or such Subsidiary shall have set aside such reserves, if any, with respect thereto as of the date of this Agreement are required by GAAP and listed on Exhibit 8.2.3deemed adequate by Borrower or such Subsidiary and its independent accountants;
(v) Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of pay Rentals permitted by subsection 8.2.13;
(xvi) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Line;
(vivii) contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
business (vii) guaranties but not by way of guaranty of any Indebtedness permitted under this subsection 8.2.3Subsidiary);
(viii) Indebtedness owed to Intelligroup, Inc. in respect the principal amount of Intercompany Loans$15,000,000.00 (it being understood that Borrower may make a one-time $3,000,000.00 principal payment to the holder thereof on or before September, 2000);
(ix) unsecured Derivative Obligations incurred Indebtedness of a Person which becomes a Subsidiary after the date hereof provided that:
(a) such Indebtedness existed at the time such Person became a Subsidiary and was not created in anticipation of such acquisition;
(b) immediately after giving effect to the ordinary course acquisition of business such Person by the Borrower or its Subsidiaries, no Default or Event of Default shall occur and be continuing;
(c) such Indebtedness is not guaranteed by the Borrower or any Subsidiary;
(d) such Indebtedness is not payable to selling shareholders or Persons unless subordinated to the Lender on terms approved by the Lender in respect writing; and
(e) such Indebtedness would not be subject to acceleration of maturity or cause an Event of Default under existing loan documents as a result of such acquisition by the Loans hereunder;Borrower or Subsidiary; and
(x) [intentionally omitted];
Indebtedness existing on the date hereof and any refinancings, refundings, swaps or exchanges thereof (xi) Indebtedness incurred without any increase in the ordinary course of business with respect to surety and appeal bonds, performance bonds and other similar obligations not to exceed $2,000,000 in the aggregate at any time outstanding;
(xii) Indebtedness not included in paragraphs (i) through (xi) above which does not exceed at any time, in the aggregate, $15,000,000;
(xiii) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinancedthereof), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,000.
Appears in 1 contract
Total Indebtedness. Create, incur, assume, or suffer to exist, or permit any Subsidiary of its Subsidiaries any Borrower to create, incur or suffer to exist, any Indebtedness, except:
(i) Obligations owing to Agent or any Lender and Lenders under this Agreement or any of the other Loan DocumentsAgreement;
(ii) Indebtedness evidenced by the Subordinated Bonds and the of any Borrower to any other Subordinated Bond Documents (each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6, subject to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for in the Subordinated BondsBorrower;
(iii) Indebtedness evidenced accounts payable to trade creditors and current operating expenses (other than for Money Borrowed) which are not aged more than 120 days from billing date or more than 30 days from the due date, in each case incurred in the ordinary course of business and paid within such time period, unless the same are being actively contested in good faith and by the Secured Bonds appropriate and the other Secured Bond Documentslawful proceedings; and such Borrower or such Subsidiary shall have set aside such reserves, each if any, with respect thereto as in effect as of the date hereof are required by GAAP and deemed adequate by such Borrower or as modified in compliance with subsection 8.2.6 (subject to clause (xiii) below)such Subsidiary and its independent accountants;
(iv) Indebtedness, including without limitation Subordinated Debt and intercompany indebtedness, existing as of the date of this Agreement and listed on Exhibit 8.2.3Obligations to pay Rentals permitted by subsection 7.2(l);
(v) Capitalized Lease Obligations and Permitted Purchase Money Indebtedness and capitalized Lease Obligations not to exceed at any time, in the aggregate at any time outstanding the greater of (x) $10,000,000 or (y) aggregate, the amount that is equal to 3% set forth in the definition of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Line;
(vi) contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(vii) guaranties of any Indebtedness permitted under this described in subsection 8.2.37.1(i);
(viii) Indebtedness in respect obligations under the Xxxxxxx Notes, so long as Borrowers' liability thereunder does not exceed $125,000 at any time, after giving effect to the benefit of Intercompany Loans;indemnification payments provided for pursuant to the Integra Acquisition Documents; and
(ix) unsecured Derivative Obligations incurred in the ordinary course of business in respect of the Loans hereunder;
(x) [intentionally omitted];
(xi) Indebtedness incurred in the ordinary course of business with respect to surety and appeal bonds, performance bonds and other similar obligations not to exceed $2,000,000 in the aggregate at any time outstanding;
(xii) Indebtedness not included in paragraphs (i) through (xiviii) above which does not exceed at any time, in the aggregate, $15,000,000;
(xiii) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,000250,000.
Appears in 1 contract
Samples: Loan and Security Agreement (Integra Lifesciences Corp)
Total Indebtedness. Create, incur, assume, or suffer to ------------------ exist, or permit any Subsidiary of its Subsidiaries Borrower to create, incur or suffer to exist, any Indebtedness, except:
(i) Obligations owing to Agent or any Lender under this Agreement or any of the other Loan DocumentsAgreement;
(ii) Indebtedness evidenced by the Subordinated Bonds and the other Subordinated Bond Documents (each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6, subject to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for in the Subordinated Bonds;
(iii) Indebtedness evidenced by the Secured Bonds and the other Secured Bond Documents, each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6 (subject to clause (xiii) below);
(iv) Indebtedness, including without limitation Subordinated Debt and intercompany indebtedness, existing as of on the date of this Agreement and listed on Exhibit 8.2.3; -------------
(iii) Permitted Purchase Money Indebtedness;
(iv) Senior Notes Debt of up to $130,000,000, as reduced by any payments made in respect thereof;
(v) Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not Seller Secured Debt of up to exceed $5,000,000, as reduced by any payments made in the aggregate at any time outstanding the greater of (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Linerespect thereof;
(vi) contingent Indebtedness in respect of intercompany loans permitted under subsection 8.2.2(iv);
(vii) Guaranties of any Indebtedness permitted hereunder;
(viii) Contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(vii) guaranties of any Indebtedness permitted under this subsection 8.2.3;
(viii) Indebtedness in respect of Intercompany Loans;
(ix) unsecured Derivative Obligations incurred To the extent not mentioned above, trade payables, accruals and accounts payable in the ordinary course of business (in respect of each case to the Loans hereunder;extent not overdue) not for Money Borrowed; and
(x) [intentionally omitted];
(xi) Indebtedness incurred in the ordinary course of business with respect to surety and appeal bonds, performance bonds and other similar obligations not to exceed $2,000,000 in the aggregate at any time outstanding;
(xii) Indebtedness not included in paragraphs (i) through (xiix) above which does not exceed at any time, in the aggregate, the sum of $15,000,000;
250,000. Notwithstanding the foregoing, in no event shall Borrower or any Subsidiary of Borrower incur, assume or suffer to exist (xiiia) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing (including any Indebtedness listed in clauses (i) through - (xii) of this subsection 8.2.3above), so long as (aunless the same would be permitted under either Section 4.13(a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum Senior Notes Indenture and Section 4.13(a) of the principal amount of, Parent Debentures Indenture or Sections 4.13(b)(i) - (xvi) of the Senior Notes Indenture and accrued interest in respect of, Sections 4.13(b)(i) - (xvi) of the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancingParent Debentures Indenture, (b) any Indebtedness in respect of any "Additional Notes" (as defined in the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, Senior Notes Indenture) or (c) the average weighted average life to maturity any Indebtedness in respect of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced), (e) if such Indebtedness being refinanced is Subordinated Parent Debentures Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any which shall remain solely an obligation of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,000Parent.
Appears in 1 contract
Total Indebtedness. Create, incur, assume, or suffer to exist, or permit any Subsidiary of its Subsidiaries Borrower, if any, to create, incur or suffer to exist, any Indebtedness, except:
(i) Obligations owing to Agent or any Lender under this Agreement or any of the other Loan DocumentsObligations;
(ii) Indebtedness evidenced by the Subordinated Bonds and the other Subordinated Bond Documents (each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6Indebtedness, subject to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant extent permitted by Section 8.2.2, of any Subsidiary of Borrower, if any, to Borrower (except to the subordination provisions provided for extent eliminated in the Subordinated Bondsconsolidation) or to another Subsidiary of Borrower;
(iii) Indebtedness evidenced accounts payable to trade creditors and current operating expenses (other than for Money Borrowed) which on average are not aged more than 90 days from billing date or more than 30 days from the due date, in each case incurred in the ordinary course of Borrower's business and paid within such time period, unless the same are being contested in good faith; and Borrower or such Subsidiary shall have set aside such reserves, if any, with respect thereto as are required by the Secured Bonds GAAP and the deemed adequate by Borrower or such Subsidiary and its independent accountants; provided, however, that not more than 20% in dollar value of all accounts payable and current operating expenses (other Secured Bond Documents, each as in effect as than for Money Borrowed) of the Borrowers and their Subsidiaries may be aged more than 90 days from billing date hereof or as modified in compliance with subsection 8.2.6 (subject to clause (xiii) below)more than 30 days from due date;
(iv) Indebtedness, including without limitation Subordinated Debt and intercompany indebtedness, existing as of the date of this Agreement and listed on Exhibit 8.2.3Obligations to pay rent permitted by subsection 8.2.13;
(v) Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Line;
(vi) contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(vii) guaranties taxes, assessments and governmental charges or levies which are not delinquent or which are being contested in good faith and for which, in accordance with GAAP, adequate reserves have been set aside on the books of any Indebtedness permitted under this subsection 8.2.3Borrower;
(viii) the Indebtedness in respect of Intercompany Loans;described on Exhibit 8.2.3
(ix) unsecured Derivative Obligations incurred in the ordinary course of business in respect of the Loans hereunder;
(x) [intentionally omitted];
(xi) Indebtedness incurred in the ordinary course of business with respect to surety and appeal bonds, performance bonds and other similar obligations not to exceed $2,000,000 in the aggregate at any time outstanding;
(xii) Indebtedness not included in paragraphs (i) through (xiviii) above which does not exceed at any time, in the aggregate, the sum of $15,000,0002,000,000 with respect to Restoration and $500,000 with respect to Michaels;
(xiiix) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material contingent liabilities with respect to AgentCash Earn-Out payments.;
(xi) Indebtedness paid in full on the Closing Date, Lenders provided that any related liens or the applicable Borrower security interests are also terminated (or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial arrangements acceptable to Agent and Lenders as for such termination are made) on the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor AgreementClosing Date; and
(xivxii) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for deposits, pledges and bonds to secure the thirty (30) day period ending on the date payment of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness worker's compensation, unemployment insurance and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,000other social security benefits or obligations.
Appears in 1 contract
Samples: Loan and Security Agreement (Restoration Hardware Inc)
Total Indebtedness. Create, incur, assume, or suffer to exist, or permit any Subsidiary of its Subsidiaries Borrower to create, incur or suffer to exist, any IndebtednessIndebtedness for Money Borrowed, except:
(i) Obligations owing to Agent or any Lender under under, or arising from, this Agreement or any of the other Loan Documents;
(ii) Indebtedness evidenced by under the Subordinated Bonds Indentures (and all related agreements, instruments and documents) and the other Subordinated Bond Documents City Loan Agreement (and all related agreements, instruments and documents), in each as in effect as case to the extent outstanding on the Effective Date after completion of the date hereof or as modified in compliance with subsection 8.2.6, subject to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for in the Subordinated BondsPermitted Note Exchange Offer;
(iii) Indebtedness evidenced by after the Secured Bonds and the other Secured Bond Documents, each as in effect as completion of the date hereof or as modified Permitted Note Exchange Offer, (a) Indebtedness under the Exchange Instruments (and all related agreements, instruments and documents) and (b) Indebtedness in compliance with subsection 8.2.6 (subject to clause (xiii) below)respect of the Series C Preferred;
(iv) Indebtedness, including without limitation Subordinated Debt and intercompany indebtedness, existing as of the date of this Agreement and listed on Exhibit 8.2.3 or otherwise approved by Majority Lenders;
(v) other Indebtedness listed on Exhibit 8.2.3;
(vvi) Capitalized Lease Derivative Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of deemed acceptable by Majority Lenders;
(xvii) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Line;
(viviii) contingent liabilities (including any relating reserves) arising out of from endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(viiix) guaranties Guaranties of any Indebtedness permitted under this subsection 8.2.3;
(viii) Indebtedness in respect of Intercompany Loans;
(ix) unsecured Derivative Obligations incurred in the ordinary course of business in respect of the Loans hereunder;
(x) [intentionally omitted]Capitalized Lease Obligations incurred in connection with a Permitted GO Transaction and/or a Permitted RD Transaction;
(xi) Indebtedness incurred in the ordinary course of business connection with respect to surety and appeal bonds, performance bonds and other similar obligations not to exceed $2,000,000 in the aggregate at any time outstandinga Permitted Tandem Mill Transaction;
(xii) Indebtedness permitted pursuant to subsection 8.2.2(v);
(xiii) Indebtedness in respect of financed insurance premiums;
(xiv) Indebtedness not included in paragraphs (i) through (xixiii) above which does not exceed at any time, in the aggregate, the sum of $15,000,000;5,000,000; and
(xiiixv) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness for Money Borrowed and permitted under the foregoing clauses clause (iiv), (v), (vii) through (xiiix), (x) of this subsection 8.2.3or (xi) above, so long as provided that (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced repaid at the time of refinancingrepayment, plus reasonable direct expenses of such refinancing, (b) the refinancing Indebtedness is secured only by Liens on assets, if any, assets that secured the Indebtedness being refinancedrepaid, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinancedbe repaid, (d) the refinancing Indebtedness has terms that are not materially more adverse in any material respect to Agent, Lenders or the applicable restrictive on Borrower or Subsidiary of a Borrower and its Subsidiaries than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced), repaid and (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if incurred by any Subsidiary of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) Borrower is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date used to repay Indebtedness of any such incurrence Borrower or another Subsidiary of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,000Borrower.
Appears in 1 contract
Total Indebtedness. Create, incur, assume, or suffer to exist, or permit any Subsidiary of its Subsidiaries Borrower to create, incur or suffer to exist, any Indebtedness, except:
(i) Obligations owing to Agent or any Lender under this Agreement or any of the other Loan Documentsand Lenders;
(ii) Indebtedness evidenced by the Subordinated Bonds and the other Subordinated Bond Documents (each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6, subject any Subsidiary of Borrower to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for in the Subordinated BondsBorrower;
(iii) Indebtedness evidenced accounts payable to trade creditors and current operating expenses (other than for Money Borrowed) which are not aged more than 120 days from billing date or more than 60 days from the due date, in each case incurred in the ordinary course of business and paid within such time period, unless the same are being actively contested in good faith and by the Secured Bonds appropriate and the other Secured Bond Documentslawful proceedings; and Borrower or such Subsidiary shall have set aside such reserves, each if any, with respect thereto as in effect as of the date hereof are required by GAAP and deemed adequate by Borrower or as modified in compliance with subsection 8.2.6 (subject to clause (xiii) below)such Subsidiary and its independent accountants;
(iv) Indebtedness, including without limitation Subordinated Debt and intercompany indebtedness, existing as of the date of this Agreement and listed on Exhibit 8.2.3Obligations to pay Rentals permitted by Section 8.2.13;
(v) Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Line;
(vi) contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(vii) guaranties Capital Lease Obligations to the extent permitted by Section 8.2.8 in an aggregate principal amount of any Indebtedness permitted under this subsection 8.2.3not more than $750,000;
(viii) Indebtedness in respect of Intercompany Loansto deferred taxes;
(ix) unsecured Derivative Obligations incurred Indebtedness relating to compensation owed to Borrower’s employees for services rendered in the ordinary course of business in respect of the Loans hereunderbusiness;
(x) [intentionally omitted]all unfunded pension and other employee benefit plan obligations and liabilities but only to the extent they are permitted to remain unfunded under applicable law;
(xi) Indebtedness incurred insurance reserves created in the ordinary course of business with respect to surety and appeal bonds, performance bonds and other similar obligations not to exceed $2,000,000 in the aggregate at any time outstandingbusiness;
(xii) Indebtedness incurred in connection with loans on the cash surrender value of key-man life insurance policies so long as the principal amount of such Indebtedness does not exceed $2,000,000, the per annum interest rate payable with respect to such Indebtedness does not exceed 4.25% and such Indebtedness does not require any principal amortization on or prior to December 31, 2013; and
(xiii) Indebtedness not included in paragraphs (i) through (xixiii) above which does not exceed at any time, in the aggregate, $15,000,000;
(xiii) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,000500,000.”
Appears in 1 contract
Total Indebtedness. Create, incur, assume, or suffer to exist, or permit any Subsidiary of its Subsidiaries any Borrower to create, incur or suffer to exist, any Indebtedness, except:
(i) Obligations owing to Agent or any Lender under this Agreement or any of the other Loan Documentsand Lenders;
(ii) Indebtedness evidenced by the Subordinated Bonds and the other Subordinated Bond Documents (each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6, subject any Subsidiary of a Borrower to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for in the Subordinated Bondsa Borrower;
(iii) Indebtedness evidenced accounts payable to trade creditors and current operating expenses (other than for Funded Debt) which are not aged more than 30 days from the due date, in each case incurred in the ordinary course of business and paid within such time period, unless the same are being actively contested in good faith and by the Secured Bonds appropriate and the other Secured Bond Documentslawful proceedings; and such Borrower or such Subsidiary shall have set aside such reserves, each if any, with respect thereto as in effect as of the date hereof are required by GAAP and deemed adequate by such Borrower or as modified in compliance with subsection 8.2.6 (subject to clause (xiii) below)such Subsidiary and its independent accountants;
(iv) Indebtedness, including without limitation Subordinated Debt and intercompany indebtedness, existing as of the date of this Agreement and listed on Exhibit 8.2.3Obligations to pay Rentals permitted by Section 8.2.18;
(v) Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Line;
(vi) contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(vii) guaranties of any Indebtedness permitted under this subsection 8.2.3Capitalized Leases listed on Exhibit 7.1.22;
(viii) Indebtedness incurred in respect of Intercompany Loansconnection with performance bonds, workmen's compensation bonds or the like;
(ix) unsecured Derivative Obligations Indebtedness incurred in pursuant to the ordinary course of business in respect of the Loans hereunderLicense Agreement;
(x) [intentionally omitted]Indebtedness incurred pursuant to the Subordinated Note;
(xi) Indebtedness incurred owed by ETI to Xxxx Xxxxxxx or his Affiliates in connection with the ordinary course purchase by ETI of business with respect to surety and appeal bonds, performance bonds and other similar obligations the capital stock of Mid-States; provided that the amount of such Indebtedness does not to exceed $2,000,000 in the aggregate at any time outstanding;300,000; and
(xii) Indebtedness not included in paragraphs (i) through (xi) above which does not exceed at any time, in the aggregate, $15,000,000;
(xiii) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,000100,000.
Appears in 1 contract
Total Indebtedness. Create, incur, assume, or suffer to exist, or permit any of its Subsidiaries to create, incur or suffer to exist, any Indebtedness, except:
(i) Obligations owing to Administrative Agent or any Lender under this Agreement or any of the other Loan Documents;
(ii) Indebtedness evidenced by the Subordinated Bonds and the other Subordinated Bond Documents (each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6, subject to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for in the Subordinated Bonds;
(iii) Indebtedness evidenced by the Secured Bonds and the other Secured Bond Documents, each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6 (subject to clause (xiii) below);
(iv) Indebtedness, including without limitation Subordinated Debt and intercompany indebtedness, existing as of on the date of this Agreement and listed on Exhibit 8.2.3;
(viii) Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Line;
(viiv) contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(viiv) guaranties of any Indebtedness permitted hereunder;
(vi) Indebtedness in respect of intercompany loans permitted under this subsection 8.2.38.2.2(v);
(vii) obligations to pay Rentals permitted by subsection 8.2.17;
(viii) Indebtedness to the extent not included above, trade payables, accruals and accounts payable in respect the ordinary course of Intercompany Loansbusiness (in each case to the extent not overdue) not for Money Borrowed;
(ix) unsecured the First Lien Debt, and extensions of maturity, refinancing or modification of the terms thereof, but only to the extent permitted by subsection 8.2.6; provided that (A) the aggregate outstanding principal amount of First Lien Debt (with letters of credit issued thereunder being deemed to have a principal amount equal to the maximum potential liability of Borrower or any of its Subsidiaries thereunder) at any time outstanding shall not exceed $350,000,000 less the aggregate amount of (x) all Net Cash Proceeds of asset sales or other dispositions or casualty or condemnation events, incurrences or issuances of additional Indebtedness (other than any Indebtedness that refinances the First Lien Debt outstanding on such date in its entirety) or issuances of additional equity and (y) amounts resulting from an excess cash flow sweep or similar concept, in the case of each of clauses (x) and (y), that are applied by Borrower or any of its Subsidiaries after the Closing Date to repay, whether optionally or mandatorily, any term First Lien Debt or to repay, whether optional or mandatorily, any revolving credit First Lien Debt and effect a corresponding commitment reduction with respect thereto, and (B) Borrower shall not create, incur or assume First Lien Debt (other than Permitted Overadvances) if, after giving effect to such creation, incurrence or assumption, the Collateral Coverage Ratio would exceed 1.00 to 1.00;
(x) Indebtedness arising under performance and surety bonds in the ordinary course of business;
(xi) Indebtedness incurred to finance the unpaid portion of annual insurance premiums payable by Credit Parties and their Subsidiaries in the ordinary course of business, provided, that the aggregate principal amount of such Indebtedness does not exceed at any time $4,000,000;
(xii) Indebtedness in respect of Derivative Obligations and other Product Obligations, in each case, incurred in the ordinary course of business in respect of the Loans hereunder;and not for speculative purposes; and
(x) [intentionally omitted];
(xi) Indebtedness incurred in the ordinary course of business with respect to surety and appeal bonds, performance bonds and other similar obligations not to exceed $2,000,000 in the aggregate at any time outstanding;
(xiixiii) Indebtedness not included in paragraphs clauses (i) through (xixii) above which does not exceed at any time, time $7,500,000 in the aggregate, $15,000,000;
(xiii) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum aggregate principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,000amount.
Appears in 1 contract
Samples: Loan and Security Agreement (Nes Rentals Holdings Inc)
Total Indebtedness. Create, incur, assume, or suffer to exist, or permit any of its Subsidiaries Restricted Subsidiary to create, incur or suffer to exist, any Indebtedness, except:
(i) Obligations owing to Agent Agents or any Lender under this Agreement or any of the other Loan Documents;
(ii) Indebtedness evidenced by Indebtedness, including without limitation senior unsecured debt existing on the Subordinated Bonds Restatement Date and set forth on Schedule 8.2.3 and any refinancings, refundings, renewals or extensions thereof (without increasing the other Subordinated Bond Documents principal amount thereof (each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6, subject to clause (xiii) below), so long as such Indebtedness remains subordinated except to the Obligations pursuant to extent representing the subordination provisions provided for financing of premiums, interest, fees and other expenses in connection therewith) or shortening the Subordinated Bondsmaturity thereof);
(iii) Indebtedness evidenced by the Secured Bonds and the other Secured Bond Documents, each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6 (subject to clause (xiii) below)Permitted Purchase Money Indebtedness;
(iv) Indebtedness, including without limitation Subordinated Debt and intercompany indebtedness, existing as of the date of this Agreement and listed on Exhibit 8.2.3;
(v) Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Line;
(vi) contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(viia) guaranties of any Indebtedness permitted to be incurred hereunder by a Borrower or a Restricted Subsidiary and (b) unsecured guaranties of any Indebtedness of an Unrestricted Subsidiary incurred in connection with a Permitted Acquisition; provided that the maximum aggregate principal amount of the Indebtedness so guaranteed pursuant to this clause (b) does not exceed $250,000,000 at any time outstanding;
(vi) guaranties of any obligations of any Subsidiary to the extent an intercompany loan to such Subsidiary would be permitted under this subsection 8.2.38.2.2(v) (and, solely for purposes of such subsection, the amount of such guaranties shall be deemed to be intercompany loans thereunder);
(vii) Indebtedness in respect of intercompany loans permitted under subsections 8.2.2(v) or (vi);
(viii) Indebtedness to the extent not included above, trade payables, accruals and accounts payable in respect the ordinary course of Intercompany Loansbusiness;
(ix) Derivative Obligations so long as such Derivative Obligations are not entered into for speculative purposes;
(x) Indebtedness of Loan Parties in respect of the Senior Secured Notes in an aggregate principal amount not in excess of $475,000,000 at any time outstanding and, in each case, any refinancing, extension, refunding or renewal thereof; provided that (i) the aggregate principal amount thereof is not increased (except to the extent representing the financing of premiums, interest, fees and expenses in connection therewith), (ii) neither the final maturity nor the average life to maturity thereof is shortened, (iii) such refinancing debt, if secured, is secured only by assets of U.S. Borrower and its Restricted Subsidiaries that are U.S. Subsidiaries that constitute Collateral for the Obligations pursuant to the Intercreditor Agreement or another intercreditor agreement that is no less favorable to the Secured Parties than the Intercreditor Agreement and (iv) the non-economic terms and conditions of such refinancing indebtedness, when taken as a whole, are no less favorable to the Loan Parties than those contained in the Senior Secured Note Documents;
(xi) Indebtedness of Loan Parties in respect of (x) additional Senior Secured Notes (having substantially the same non-economic terms as the Senior Secured Notes issued on the Restatement Date and subject to the Intercreditor Agreement) and/or (y) unsecured Derivative notes containing non-economic provisions which, when taken as a whole, are no less favorable to the Loan Parties than those contained in the Senior Secured Note Documents (provided that such unsecured notes do not mature prior to the maturity date of the Senior Secured Notes and do not require any scheduled payments of principal prior to the maturity thereof), in an aggregate principal amount not to exceed $250,000,000 and, in each case, any refinancing, extension, refunding or renewal thereof; provided that (i) the aggregate principal amount thereof is not increased (except to the extent representing the financing of premiums, interest, fees and expenses in connection therewith), (ii) neither the final maturity nor the average life to maturity thereof is shortened, (iii) such refinancing debt, if secured, is secured only by assets of U.S. Borrower and its Restricted Subsidiaries that are U.S. Subsidiaries that constitute Collateral for the Obligations pursuant to the Intercreditor Agreement or another intercreditor agreement that is no less favorable to the Secured Parties than the Intercreditor Agreement and (iv) the non-economic terms and conditions of such refinancing indebtedness, when taken as a whole, are no less favorable to the Loan Parties than those contained in the Senior Secured Note Documents.
(xii) Subordinated Debt in an aggregate principal amount outstanding at any time not to exceed $40,000,000;
(xiii) Surety Obligations incurred in the ordinary course of business in connection with workers’ compensation, social security, unemployment insurance and other like laws and with respect of the Loans hereunder;
(x) [intentionally omitted];
(xi) Indebtedness incurred to performance bonds, surety bonds, appeal bonds or customs bonds required in the ordinary course of business or in connection with the enforcement of rights or claims of any Borrower or any of its Restricted Subsidiaries or in connection with judgments that do not result in a Default or Event of Default;
(xiv) Indebtedness of any Borrower or any of its Subsidiaries that may be deemed to exist in connection with (a) the Purchase Agreement and the Transactions, (b) acquisition agreements with respect to surety Permitted Acquisitions or (c) dispositions not prohibited under this Agreement, in each case consisting of earn-outs, purchase price adjustments or indemnities;
(xv) Capitalized Lease Obligations arising from Sale and appeal bonds, performance bonds and other similar obligations Leaseback Transactions permitted under Section 8.2.11;
(xvi) Indebtedness of any Borrower or any of its Subsidiaries arising in connection with the financing by insurance providers of insurance premiums in the ordinary course of business not to exceed $2,000,000 in the aggregate 20,000,000 at any time outstanding;
(xiixvii) Indebtedness of any Person that becomes a Restricted Subsidiary after the Restatement Date; provided that (a) such Indebtedness exists at the time such person becomes a Restricted Subsidiary and is not created in contemplation of or in connection with such person becoming a Restricted Subsidiary and (b) the aggregate principal amount of Indebtedness permitted by this clause (xvii) (other than in respect of Capitalized Lease Obligations, industrial revenue bonds and Purchase Money Indebtedness) shall not exceed $50,000,000 at any time outstanding, and any refinancing, refundings, renewals or extensions thereof not increasing the principal amount thereof (except to the extent representing the financing of premiums, interest, fees and expenses in connection therewith) or shortening the maturity thereof; and
(xviii) Unsecured Indebtedness not included in paragraphs (i) through (xixvii) above which does not exceed at any time, in the aggregateaggregate together with all other Borrowers, $15,000,000;
(xiii) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,0005,000,000.
Appears in 1 contract
Total Indebtedness. Create, incur, assume, or ------------------ suffer to exist, or permit any of its Subsidiaries Subsidiary to create, incur or suffer to exist, any Indebtedness, except:
(i) Obligations owing to Agent or any Lender under this Agreement or any of the other Loan Documents;
(ii) Indebtedness evidenced by the Subordinated Bonds and the other Subordinated Bond Documents (each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6, subject to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for in the Subordinated Bonds;
(iii) Indebtedness evidenced by the Secured Bonds and the other Secured Bond Documents, each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6 (subject to clause (xiii) below);
(iv) Indebtedness, including without limitation Subordinated Debt and intercompany indebtedness, existing as of on the date of this Agreement and listed on Exhibit 8.2.38.2.3 and any renewals, ------------- extensions, refinancings or replacements thereof, but only if (a) the principal amount of such new Indebtedness does not exceed the principal amount of the existing Indebtedness at the time of such transaction, and (b) such new Indebtedness does not contain terms materially more restrictive to Borrowers and their Subsidiaries than those contained in the existing Indebtedness;
(iii) Subordinated Debt, including the Convertible Subordinated Debt;
(iv) Permitted Purchase Money Indebtedness;
(v) Capitalized Permitted Capital Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold LineObligations;
(vi) contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(vii) guaranties of any Indebtedness permitted under this subsection 8.2.3;
(viii) Indebtedness in respect of Intercompany Loansintercompany loans permitted under subsections 8.2.2(v), (vi) and (vii);
(ix) unsecured Derivative Obligations incurred obligations to pay Rentals permitted by subsection 8.2.19;
(x) to the extent not included above, trade payables, accruals and accounts payable in the ordinary course of business (in respect of each case to the Loans hereunder;
(xextent not overdue or being contested in good faith by appropriate proceedings being diligently conducted) [intentionally omitted]not for Money Borrowed;
(xi) Indebtedness incurred (other than trade payables, accruals and accounts payable permitted under clause (x)) of any Foreign Subsidiary in an aggregate amount for all of the ordinary course of business with respect to surety and appeal bonds, performance bonds and other similar obligations Foreign Subsidiaries not to exceed $2,000,000 in the aggregate 7,500,000 at any time outstanding;; and
(xii) Indebtedness not included in paragraphs (i) through (xi) above above, which does not exceed at any time, in the aggregate, $15,000,000;
(xiii) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,000500,000.
Appears in 1 contract
Samples: Loan and Security Agreement (Falcon Products Inc /De/)
Total Indebtedness. Create, incur, assume, or suffer to exist, or permit any of its Subsidiaries to create, incur or suffer to exist, any Indebtedness, except:
(i) Obligations owing to Agent or any Lender under this Agreement or any of the other Loan DocumentsLender;
(ii) Indebtedness evidenced by the Subordinated Bonds Debt having terms and the other Subordinated Bond Documents (each as in effect as of conditions acceptable to Lender which exists on the date hereof or as modified in compliance with subsection 8.2.6, subject to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for in the Subordinated Bondsof this Agreement;
(iii) Indebtedness evidenced by the Secured Bonds and the other Secured Bond Documents, each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6 (subject any Subsidiary of Borrower to clause (xiii) below)Borrower;
(iv) Indebtednessaccounts payable to trade creditors and current operating expenses (other than for Money Borrowed) which are not aged more than thirty (30) days from the due date, including without limitation Subordinated Debt in each case incurred in the ordinary course of business and intercompany indebtednesspaid within such time period, existing as of unless the date of this Agreement and listed on Exhibit 8.2.3same are being Properly Contested;
(v) Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Linepay Rentals permitted by Section 8.2.13;
(vi) additional Subordinated Debt having terms and conditions acceptable to Lender incurred after the date hereof not to exceed Three Million Five Hundred Thousand Dollars ($3,500,000);
(vii) contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(vii) guaranties of any Indebtedness permitted under this subsection 8.2.3;
(viii) Indebtedness in respect of Intercompany Loansexisting on the date hereof and described on Exhibit O hereto;
(ix) unsecured Derivative Obligations Purchase Money Indebtedness (i) incurred prior to the date of the Agreement and disclosed to Lender; or (ii) used to make Capital Expenditures permitted under Section 8.2.8 hereof and which, in the ordinary course of business in respect of aggregate, as to Borrower and its Subsidiaries, does not exceed the Loans hereunderfollowing amounts during the following time periods: (a) from the date hereof through December 31, 1998, $150,000; (b) from January 1, 1999 through December 31, 1999, $600,000; (c) from January 1, 2000 through December 31, 2000, $600,000; and (d) January 1, 2001 through March 15, 2001, $150,000;
(x) [intentionally omitted];additional Subordinated Debt having terms and conditions acceptable to Lender incurred after the date hereof consisting of the First Additional Capital Contribution and the Second Additional Capital Contribution; and
(xi) Indebtedness incurred in the ordinary course of business with respect to surety and appeal bonds, performance bonds and other similar obligations not to exceed $2,000,000 in the aggregate at any time outstanding;
(xii) Indebtedness not included in paragraphs (i) through (xix) above which does not exceed at any time, in the aggregate, $15,000,000;
(xiii) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, Fifty Thousand Dollars (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced$50,000), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,000.
Appears in 1 contract
Samples: Loan and Security Agreement (Black Warrior Wireline Corp)
Total Indebtedness. Create, incur, assume, assume or suffer to exist, or permit any of its Subsidiaries Subsidiary to create, incur or suffer to exist, any Indebtedness, except:
: (ia) Obligations owing to Agent Lender; (b) Subordinated Debt or Indebtedness of any Lender under this Agreement or any of the Subsidiary to either Borrower; (c) unsecured accounts payable to trade creditors which are not aged more than one hundred twenty (120) days from billing date and current operating expenses (other Loan Documents;
than for money borrowed) which are not more than sixty (ii60) Indebtedness evidenced by the Subordinated Bonds and the other Subordinated Bond Documents (days past due, in each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6, subject to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for case incurred in the Subordinated Bonds;
normal course of business and paid within such time period, unless the same is actively being contested in good faith and by appropriate and lawful proceedings and such Borrower shall have set aside such reserves, if any, with respect thereto as are required by Generally Accepted Accounting Principles and deemed adequate by such Borrower and its independent public accountants; (iiid) Indebtedness evidenced by the Secured Bonds and the other Secured Bond Documents, each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6 (subject to clause (xiii) below);
(iv) Indebtedness, including without limitation Subordinated Debt and intercompany indebtedness, existing as of the date of this Agreement and listed on Exhibit 8.2.3;
(v) Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause ; (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Line;
(vif) contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
; (vii) guaranties of any Indebtedness permitted under this subsection 8.2.3;
(viii) Indebtedness in respect of Intercompany Loans;
(ix) unsecured Derivative Obligations incurred in the ordinary course of business in respect of the Loans hereunder;
(x) [intentionally omitted];
(xi) Indebtedness incurred in the ordinary course of business with respect to surety and appeal bonds, performance bonds and other similar obligations not to exceed $2,000,000 in the aggregate at any time outstanding;
(xiig) Indebtedness not included in paragraphs (ia) through (xif) above which does not exceed at any time, in the aggregate, the sum of $15,000,00010,000; and (h) PPP Debt, provided that Borrower complies with the following:
(a) Borrower shall disburse all PPP Debt funds within the ‘covered period’ (as defined by 15 U.S.C. § 9005, as amended by § 306 of Title III of H.R. 133) applicable to such PPP Debt;
(xiiib) subject Borrower shall comply with all obligations, requirements and conditions included in the PPP Regulations, including without limitation the conditions to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess obtaining loan forgiveness of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, PPP Debt;
(c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse Borrower shall fully comply with and honor all certifications made by Borrower in any material respect to Agent, Lenders or application and supporting documentation submitted by Borrower in conjunction with obtaining the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced), (e) if such Indebtedness being refinanced is Subordinated PPP Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xivd) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for The occurrence of a default or an event of default under any agreement related to the thirty (30) day period ending on the date PPP Debt shall be an Event of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,000Default under this Agreement.
Appears in 1 contract
Samples: Loan and Security Agreement (Blue Star Foods Corp.)
Total Indebtedness. CreateIf a Covenant Event exists and would exist upon consummation or incurrence of the foregoing, create, incur, assume, or suffer to exist, or permit any of its Subsidiaries to create, incur or suffer to exist, any Indebtedness, except:
(i) Obligations owing to any Agent or any Lender under this Agreement or any of the other Loan Documents;
(ii) Indebtedness evidenced by the Subordinated Bonds and the other Subordinated Bond Documents (each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6, subject to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for in the Subordinated Bonds;
(iii) Indebtedness evidenced by the Secured Bonds and the other Secured Bond Documents, each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6 (subject to clause (xiii) below);
(iv) Indebtedness, including including, without limitation limitation, Subordinated Debt and intercompany indebtednessDebt, existing as of on the date of this Agreement and listed on Exhibit 8.2.3;
(v) Capitalized Lease Obligations EXHIBIT 8.2.3 or otherwise approved by Majority Lenders, and Permitted Purchase Money Indebtedness not giving effect to exceed in any subsequent extension, renewal or refinancing thereof, PROVIDED that the aggregate at any time principal amount of the Indebtedness to be extended, renewed or refinanced does not increase from that amount outstanding the greater of (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of such extension, renewal or refinancing or shorten the incurrence of any such Capitalized Lease Obligations maturity, grant Liens or increase interest rates;
(iii) Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Line;
(viiv) contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(viiv) guaranties of any Indebtedness (other than Indebtedness of Unrestricted Subsidiaries) permitted under this subsection SUBSECTION 8.2.3;
(vi) to the extent not included above, trade payables, accruals and accounts payable in the ordinary course of business (in each case to the extent not overdue) not for Money Borrowed;
(vii) Derivative Obligations incurred in order to protect against (a) price fluctuations with respect to materials used in the business of a Borrower that has incurred the same, (b) fluctuations in interest rates or (c) fluctuations in foreign exchange rates; PROVIDED that Bank shall have had a reasonable opportunity to bid to provide such Derivative Obligations to such Borrower;
(viii) Indebtedness in respect of Intercompany Loansincentive arrangements and stock appreciation rights relating to management retention practices and director deferred compensation arrangements in the ordinary course of a Borrower's business;
(ix) unsecured Derivative Obligations incurred Contingent liabilities and Indebtedness assumed or issued in the ordinary course of business connection with an acquisition that is permitted under SUBSECTION 8.2.1 (subject to any applicable limitations contained in respect of the Loans hereundersuch SUBSECTION 8.2.1);
(x) [intentionally omitted]reasonable indemnities provided in connection with dispositions permitted under SUBSECTION 8.2.8, in each case to the extent that the same have been negotiated on an arm's length basis and do not exceed the consideration received by the applicable Borrower in connection with such disposition;
(xi) Indebtedness incurred Subordinated Debt that is evidenced by a subordinated note in the ordinary course form and substance reasonably acceptable to Agent, the proceeds of business with respect which are used to surety and appeal bonds, performance bonds and other similar obligations not to exceed $2,000,000 in the aggregate at any time outstandingmake a Distribution permitted under SUBSECTION 8.2.7(iii);
(xii) Indebtedness not included in paragraphs (i) through (xi) above which is secured by Liens on real Property which does not exceed at any time, time in the aggregate, aggregate (a) $15,000,0001,000,000 for any single Borrower or (b) $2,000,000 for all Borrowers;
(xiii) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection SUBSECTION 8.2.3, so long as to the extent that (a) the terms and conditions of any such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced), (eb) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (gc) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bondssecured, any such refinancing does not provide for Liens covering any Property other than securing the Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; andbeing refinanced;
(xiv) Indebtedness incurred where in respect to intercompany loans among Borrowers, PROVIDED that the aggregate amount of such intercompany loans shall not exceed the amounts permitted in SUBSECTION 8.2.2;
(axv) average Availability 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 so long as determined by Agent such Indebtedness is extinguished within 10 Business Days of the incurrence thereof; and
(xvi) additional Indebtedness not included in its reasonable credit judgmentparagraph (i) through (xv) above in an aggregate principal amount that does not exceed $2,000,000 for the thirty (30) day period ending on the date of all Borrowers at any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,000one time outstanding.
Appears in 1 contract
Total Indebtedness. Create, incur, assume, or suffer to exist, or permit any Subsidiary of its Subsidiaries Borrower to create, incur or suffer to exist, any Indebtedness, except:
(i) Obligations owing to Agent or any Lender under this Agreement or any of the other Loan Documentsand Lenders;
(ii) Indebtedness evidenced by arising from Borrower's guarantee of Parent's obligations under the Senior Subordinated Bonds and the other Subordinated Bond Documents (each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6, subject to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for in the Subordinated BondsNote Documents;
(iii) Indebtedness evidenced by the Secured Bonds and the other Secured Bond Documents, each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6 (subject any Subsidiary of Borrower to clause (xiii) below)Borrower;
(iv) Indebtednessaccounts payable to trade creditors and current operating expenses (other than for Money Borrowed) which are not aged more than ninety (90) days from billing date or more than thirty (30) days from the due date, including without limitation Subordinated Debt in each case incurred in the ordinary course of business and intercompany indebtednesspaid within such time period, existing unless the same are being actively contested in good faith and by appropriate and lawful proceedings; and Borrower or such Subsidiary shall have set aside such reserves, if any, with respect thereto as of the date of this Agreement are required by GAAP and listed on Exhibit 8.2.3deemed adequate by Borrower or such Subsidiary and its independent accountants;
(v) Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of pay Rentals permitted by subsection 8.2.13
(xvi) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Line;
(vivii) contingent Contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(vii) guaranties of any Indebtedness permitted under this subsection 8.2.3;
(viii) Indebtedness in respect of Intercompany Loans;existing on the Closing Date and listed on Exhibit 8.2.3 (including, without limitation the IRB Indebtedness); and
(ix) unsecured Derivative Obligations incurred in the ordinary course of business in respect of the Loans hereunder;
(x) [intentionally omitted];
(xi) Indebtedness incurred in the ordinary course of business with respect to surety and appeal bonds, performance bonds and other similar obligations not to exceed $2,000,000 in the aggregate at any time outstanding;
(xii) Indebtedness not included in paragraphs (i) through (xiviii) above which does not exceed at any time, in the aggregate, $15,000,000;
(xiii) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, Five Hundred Thousand Dollars (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced$500,000), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to . Agent and Lenders as acknowledge that Borrower may repay the subordination IRB Indebtedness either in accordance with scheduled terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced or by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,000voluntary prepayment.
Appears in 1 contract
Samples: Loan and Security Agreement (Home Products International Inc)
Total Indebtedness. Create, incur, assume, or suffer to exist, or permit any of its Subsidiaries to create, incur or suffer to exist, any Indebtedness, except:
(ia) Obligations owing to Agent Administrative Agent, Canadian Agent, UK Agent, Bank or any Lender under this Agreement or any of the other Loan Documents;
(iib) Indebtedness evidenced by the Subordinated Bonds and the other Subordinated Bond Documents (each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6, subject to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for in the Subordinated Bonds;
(iii) Indebtedness evidenced by the Secured Bonds and the other Secured Bond Documents, each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6 (subject to clause (xiii) below);
(iv) Indebtedness, including without limitation Subordinated Debt and intercompany indebtedness, existing as of on the date of this Agreement and listed on Exhibit 8.2.3Schedule 8.2.3(b) and any refinancing thereof which does not increase the amount thereof;
(vc) Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Line;
(vi) contingent Contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(viid) guaranties Guaranties of any Indebtedness permitted under this subsection 8.2.3hereunder;
(viiie) Indebtedness in respect of Intercompany Loans;
(ix) unsecured Derivative Obligations incurred To the extent not mentioned above, trade payables, accruals and accounts payable in the ordinary course of business (in respect of each case to the Loans hereunderextent not overdue) not for Money Borrowed;
(xf) [intentionally omitted]Subordinated Debt in such amounts as may be approved in writing by Administrative Agent and the Majority Lenders;
(xig) Purchase Money Indebtedness incurred secured by a Purchase Money Lien and Capitalized Lease Obligations (and any refinancing thereof), provided that the aggregate unpaid principal amount for Borrowers and their Subsidiaries of the foregoing (excluding any interest component thereof) does not exceed $2,600,000 at any time to and including December 31, 2002 or $2,000,000 at any time thereafter;
(h) Permitted Intercompany Loans (for purposes of clarification, so long as no Default or Event of Default then exists or would result therefrom and so long as the applicable UK Borrower is Solvent, there is no limitation or restriction on the ability of either UK Borrower to repay any intercompany loan permitted hereunder owing by such UK Borrower to Domestic Borrower);
(i) Guaranties in the ordinary course of business with respect by any Borrower of any obligation owed by any Subsidiary to surety an unrelated third party, and appeal bondsguaranties by Subsidiaries of Domestic Borrower of any obligation owed by a Borrower to an unrelated third party, performance bonds provided that the guarantied obligations are otherwise permitted by this Agreement and other similar obligations do not to exceed $2,000,000 in the aggregate at any time outstandingthe sum of the amount set forth on Schedule 8.2.3(i) hereto as of the Closing Date plus $75,000;
(xiij) Indebtedness of Xxxxxxxx Australia referred to in Section 12.21 to the extent consented to by the Agents and Lenders as provided in such Section; and
(k) Indebtedness not included in paragraphs (ia) through (xij) above which which, when added to outstanding Indebtedness permitted under paragraph (g) above, does not exceed at any time, in the aggregate, $15,000,000;
(xiii) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,0001,000,000.
Appears in 1 contract
Samples: Loan and Security Agreement (Channell Commercial Corp)
Total Indebtedness. Create, incur, assume, or suffer to exist, or permit any of its Subsidiaries to create, incur or suffer to exist, any Indebtedness, except:
(i) Obligations owing to Agent or any Lender under this Agreement or any of the other Loan DocumentsLender;
(ii) Indebtedness evidenced by the Subordinated Bonds and the other Subordinated Bond Documents (each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6, subject to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for in the Subordinated BondsDebt;
(iii) Indebtedness evidenced by of any Subsidiary of Borrower to Borrower or between Borrowers (to the Secured Bonds and the other Secured Bond Documents, each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6 (subject to clause (xiii) belowextent permitted under Section 8.2.2(ii));
(iv) Indebtednessaccounts payable to trade creditors and current operating expenses (other than for (a) Money Borrowed and (b) accounts payable owing by Borrower to PAL) which are not aged more than sixty (60) days from the due date, including without limitation Subordinated Debt in each case incurred in the ordinary course of business and intercompany indebtednesspaid within such time period, existing as of unless the date of this Agreement and listed on Exhibit 8.2.3same are being Properly Contested;
(v) Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of pay Rentals permitted by Section 8.2.13;
(xvi) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Line;
(vivii) contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(vii) guaranties of any Indebtedness permitted under this subsection 8.2.3;
(viii) Indebtedness in respect existing on the date hereof and described on Exhibit O hereto (including Loans to PAL), and any extensions, renewals or refinancings thereof so long as (i) the principal amount thereof does not exceed the then outstanding principal amount of Intercompany Loans;the Indebtedness being so extended, renewed or refinanced, and (ii) the amortization of principal on any such refinancings shall be for no shorter period, and for no greater annual amounts, than the original amortization established for such Indebtedness; and
(ix) unsecured Derivative Obligations contingent obligations under any guarantee by Borrower or its Subsidiaries of any of the obligations of any other Subsidiary as lessee under any lease which is otherwise permitted under this Agreement;
(x) Indebtedness constituting deposits to secure the performance of bids, trade contracts (other than for Money Borrowed), leases, statutory obligations, surety and appeal bonds and performance bonds under other obligations of a like nature that are incurred in the ordinary course of business in respect of the Loans hereunder;
(x) [intentionally omitted];
(xi) Indebtedness incurred in the ordinary course of business with respect to surety and appeal bondsbusiness, performance bonds and other similar obligations not to exceed Five Hundred Thousand Dollars ($2,000,000 500,000) in the aggregate at any time outstanding;
(xi) indemnities arising under agreements entered into by Borrower or any of its Subsidiaries in the ordinary course of business;
(xii) Indebtedness arising on account of deferred taxes, deferred workers' compensation liabilities, or deferred employee medical liabilities;
(xiii) Indebtedness owing to Xxxxx and Xxxxx not to exceed $475,000 and paid pursuant to the Xxxxx/Xxxxx Settlement;
(xiv) Indebtedness owing to Equus pursuant to the Equus Term Note; and
(xv) Indebtedness not included in paragraphs (i) through (xixii) above which does not exceed at any time, in the aggregate, $15,000,000;
(xiii) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, One Hundred Thousand Dollars (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced$100,000), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,000.
Appears in 1 contract
Samples: Loan and Security Agreement (Industrial Data Systems Corp)
Total Indebtedness. Create, incur, assume, or suffer to exist, or permit any Subsidiary of its Subsidiaries Borrower to create, incur or suffer to exist, any Indebtedness, except:
(i) Obligations owing to Agent or any Lender under this Agreement or any of the other Loan Documentsand Lenders;
(ii) Indebtedness evidenced by arising from Borrower’s guarantee of Parent’s obligations under the Senior Subordinated Bonds and the other Subordinated Bond Documents (each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6, subject to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for in the Subordinated BondsNote Documents;
(iii) Indebtedness evidenced by the Secured Bonds and the other Secured Bond Documents, each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6 (subject any Subsidiary of Borrower to clause (xiii) below)Borrower;
(iv) Indebtednessaccounts payable to trade creditors and current operating expenses (other than for Money Borrowed) which are not aged more than ninety (90) days from billing date or more than thirty (30) days from the due date, including without limitation Subordinated Debt in each case incurred in the ordinary course of business and intercompany indebtednesspaid within such time period, existing unless the same are being actively contested in good faith and by appropriate and lawful proceedings; and Borrower or such Subsidiary shall have set aside such reserves, if any, with respect thereto as of the date of this Agreement are required by GAAP and listed on Exhibit 8.2.3deemed adequate by Borrower or such Subsidiary and its independent accountants;
(v) Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Linepay Rentals permitted by Subsection 8.2.13;
(vi) contingent Permitted Purchase Money Indebtedness;
(vii) Contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(viiviii) guaranties of any Indebtedness permitted under this subsection existing on the Closing Date and listed on Exhibit 8.2.3;
(viii) Indebtedness in respect of Intercompany Loans;
(ix) unsecured Derivative Obligations incurred in the ordinary course of business in respect of the Loans hereunder;
(x) [intentionally omitted];
(xi) Indebtedness incurred in the ordinary course of business with respect to surety and appeal bonds, performance bonds and other similar obligations not to exceed $2,000,000 in the aggregate at any time outstanding;
(xii) Indebtedness not included in paragraphs (i) through (xiviii) above which does not exceed at any time, in the aggregate, $15,000,000;
(xiii) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, Five Hundred Thousand Dollars (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced$500,000), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xivx) Indebtedness incurred where (a) average Availability (extensions, refinancings, modifications, amendments and restatements of any of the foregoing; provided that the principal amount thereof is not increased or the terms thereof are not modified to impose more burdensome restrictions, as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date discretion and provided, further, that Borrower gives Agent reasonable prior written notice of any such incurrence of event which notice shall be in reasonable detail. Agent and Lenders acknowledge that Borrower may repay the IRB Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring either in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined accordance with scheduled terms or by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,000voluntary prepayment.
Appears in 1 contract
Samples: Loan and Security Agreement (Home Products International Inc)
Total Indebtedness. Create, incur, assume, or suffer to exist, or permit any of its Subsidiaries Subsidiary to create, incur incur, or suffer to exist, any Indebtedness, except:
: (i) Obligations owing to Collateral Agent or and/or any Lender under this Agreement or any of the other Loan Documents;
Lender; (ii) Indebtedness evidenced by the Subordinated Bonds and the other Subordinated Bond Documents (each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6, subject to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for in the Subordinated Bonds;
Debt; (iii) Indebtedness evidenced by the Secured Bonds and the other Secured Bond Documents, each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6 (subject any Subsidiary of MMI to clause (xiii) below);
MMI; (iv) Indebtednessunsecured accounts payable to trade creditors which are incurred in the ordinary course of business, including without limitation Subordinated Debt and intercompany indebtednesswhich are paid in the ordinary course of business, existing or if not paid in the ordinary course of business, where the same are actively being contested in good faith and by appropriate and lawful proceedings and Borrower shall have set aside such reserves, if any, with respect thereto as of the date of this Agreement are required by GAAP and listed on Exhibit 8.2.3;
deemed adequate by Borrower and its independent public accountants; (v) obligations to pay Rentals permitted by Section 9.2(V); (vi) Purchase Money Indebtedness and Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the exceeding an aggregate of $10,000,000 at any time outstanding the greater of time; (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Line;
(vivii) contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(vii) guaranties of any Indebtedness permitted under this subsection 8.2.3;
; (viii) Indebtedness existing on the Closing Date and described on Exhibit R attached hereto; (ix) Refinancing Indebtedness; (x) Indebtedness in respect of Intercompany Loans;
(ix) unsecured Derivative Obligations incurred taxes, assessments, governmental charges, claims for labor, materials or supplies, and liabilities under any Plan, to the extent that payment thereof is not yet due or which are being contested in the ordinary course of business good faith by Borrower, and for which adequate reserves are maintained in respect of the Loans hereunder;
(x) [intentionally omitted];
accordance with GAAP; (xi) Indebtedness incurred in the ordinary course letters of business with respect to credit issued by Persons other than Collateral Agent or any Lender, if such letters of credit have been approved by Collateral Agent and/or Lenders; (xii) surety and appeal bonds; (xiii) guarantees of any permitted Indebtedness and of any permitted employee Indebtedness; (xiv) Indebtedness incurred by Borrower to finance insurance premiums which does not exceed at any time, performance bonds and other similar obligations not to exceed $2,000,000 in the aggregate at any time outstanding;
aggregate, $1,000,000; (xiixv) Retained Indebtedness (as such term is defined in the SRP Stock Purchase Agreement), provided that such Indebtedness is paid in full on or prior to December 31, 2002; (xvi) Indebtedness payable pursuant to Section 2.2 of the SRP Stock Purchase Agreement; and (xvii) Indebtedness not included in paragraphs clauses (i) through (xixvi) above which does not exceed at any time, in the aggregate, the sum of $15,000,000;
(xiii1,000,000." Amendment of Section 9.2(J) subject to of the limitations Loan Agreement. Effective upon satisfaction of the conditions set forth in subsection 8.2.6Article III of this Amendment, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xiiSection 9.2(J) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, (b) the refinancing Indebtedness Loan Agreement is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent hereby deleted in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness entirety and the consummation of any transactions occurring following substituted in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,000.lieu thereof:
Appears in 1 contract
Total Indebtedness. Create, incur, assume, or suffer to exist, or permit any Subsidiary of its Subsidiaries any Borrower to create, incur or suffer to exist, any Indebtedness, except:
(i) Obligations owing to Agent or any Lender under this Agreement or any of the other Loan Documents;
(ii) Indebtedness evidenced by the Subordinated Bonds and the other Subordinated Bond Documents (each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6, subject to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for in the Subordinated Bonds;
(iii) Indebtedness evidenced by the Secured Bonds and the other Secured Bond Documents, each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6 (subject to clause (xiii) below);
(iv) Indebtedness, including without limitation Subordinated Debt and intercompany indebtednessDebt, existing as of on the date of this Agreement and listed on Exhibit 8.2.3;
(viii) Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Line;
(viiv) contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(viiv) guaranties Guaranties of any Indebtedness permitted under this hereunder;
(vi) Indebtedness in respect of intercompany advances permitted by Section 8.2.2(iv);
(vii) obligations to pay Rentals permitted by subsection 8.2.38.2.18;
(viii) Indebtedness in respect of Intercompany LoansIntentionally Omitted;
(ix) unsecured Derivative Obligations IRB Indebtedness;
(x) Existing Mortgage Indebtedness;
(xi) Intentionally Omitted;
(xii) Indebtedness incurred pursuant to the Perma-Pipe Equipment Loan;
(xiii) to the extent not included above, trade payables, accruals and accounts payable in the ordinary course of business (in respect of each case to the Loans hereunder;extent not overdue) not for Money Borrowed; and CHICAGO/#1571873.4
(xxiv) [intentionally omitted];
(xi) Indebtedness Money Borrowed incurred in the ordinary course by foreign Subsidiaries of business with respect to surety and appeal bonds, performance bonds Borrowers and other similar obligations not to exceed $2,000,000 in the aggregate at any time outstanding;
(xii) Indebtedness not included in paragraphs (i) through (xixiii) above which does not exceed at any time, in the aggregate, $15,000,000;
(xiii) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, Eleven Million Dollars (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced$11,000,000), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,000.
Appears in 1 contract
Total Indebtedness. CreateThe Company Parties shall not, ------------------ nor permit any of their Subsidiaries to, create, incur, assume, issue, or suffer to existexist any Indebtedness or issue any Disqualified Stock unless the Fixed Charge Coverage Ratio for Borrowers' most recently ended period of four full fiscal quarters for which financial statements have been delivered in accordance with Section 9.3 preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock is issued would have been at least 2.5 to 1.0 determined on a pro forma basis (including a pro forma application of the net proceeds therefrom) as if the additional Indebtedness had been incurred or Disqualified Stock had been issued at the beginning of such four-quarter period. Notwithstanding the foregoing, or Company Parties may, and may permit any of its their Subsidiaries to to, create, incur incur, assume or suffer to exist, any Indebtedness, except:exist (without duplication):
(i) Obligations owing to Agent or any Lender Lenders under this Agreement or any of the other Loan Investment Documents and obligations owing to Banks and Bank Agent under the Bank Credit Agreement or any of the other Bank Credit Documents;
(ii) Indebtedness evidenced by the Subordinated Bonds and the other Subordinated Bond Documents (each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6, subject to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for in the Subordinated Bonds;
(iii) Indebtedness evidenced by the Secured Bonds and the other Secured Bond Documents, each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6 (subject to clause (xiii) below);
(iv) Indebtedness, including without limitation Subordinated Debt and intercompany indebtedness, existing as of on the date of this Agreement and listed on Exhibit 8.2.3Schedule 3.29(a) (including the ---------------- Subordinated Note Debt and the Convertible Subordinated Debt) and any renewals, extensions, refinancings or replacements thereof, but only if (a) the principal amount of such new Indebtedness does not exceed the principal amount of the existing Indebtedness at the time of such transaction, and (b) such new Indebtedness does not contain terms materially more restrictive to Company Parties than those contained in the existing Indebtedness;
(iii) Subordinated Debt (other than the Subordinated Note Debt and the Convertible Subordinated Debt) so long as the aggregate principal amount of such Subordinated Debt does not exceed $5,000,000 at any time;
(iv) Permitted Purchase Money Indebtedness;
(v) Capitalized Permitted Capital Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold LineObligations;
(vi) contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(vii) guaranties of any Indebtedness permitted under this subsection 8.2.3Section 10.3; provided that in the case of any -------- Subordinated Debt such guaranties are subordinated to the Obligations (including any guaranty thereof) on terms satisfactory to the Lenders;
(viii) Indebtedness in respect of Intercompany Loansintercompany loans permitted under Sections 10.2(v), (vi) and (vii);
(ix) unsecured Derivative Obligations obligations to pay Rentals permitted by Section 10.19;
(x) Past Due Payables existing on the Closing Date as set forth on the Payables Aging Schedule, the aggregate amount of which shall not exceed $7,000,000 as at July 31, 2005, and $5,000,000 as at the last day of the Fiscal Year ending on or about October 31, 2005;
(xi) trade payables, accruals and accounts payable, in each case, incurred after the Closing Date in the ordinary course of business (and not for Money Borrowed) to the extent such payables are not past the due date set forth on the original invoices therefor, unless being contested in respect of the Loans hereunder;
(x) [intentionally omitted];
good faith by appropriate proceedings being diligently conducted and for which adequate reserves have been provided in accordance with GAAP; provided that Company -------- Parties may permit to exist payables that would not otherwise qualify as Indebtedness permitted under this clause (xi) Indebtedness incurred in the ordinary course of business with respect to surety and appeal bonds, performance bonds and other similar obligations an aggregate amount not to exceed $2,000,000 in the aggregate 100,000 at any time outstanding;time; and
(xii) Indebtedness not included in paragraphs (iother than trade payables, accruals and accounts payable permitted under clauses (x) through and (xi)) above which does of any Foreign Subsidiary in an aggregate amount for all of the Foreign Subsidiaries not to exceed $7,500,000 at any time, in the aggregate, $15,000,000;time outstanding; and
(xiii) subject Subordinated Debt evidenced by any subordinated promissory note that may be issued pursuant to the limitations set forth and in subsection 8.2.6, refinancings accordance with Section 10.7(iii) to certain shareholders of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood Epic; provided that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date aggregate nominal -------- amount of any such notes shall reduce on a dollar for dollar basis the amount of Subordinated Debt the incurrence of Indebtedness which is otherwise permitted pursuant to clause (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30iii) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,000above.
Appears in 1 contract
Samples: Loan and Securities Purchase Agreement (Falcon Products Inc /De/)
Total Indebtedness. Create, incur, assume, or suffer to exist, or permit any Subsidiary of its Subsidiaries Borrower to create, incur or suffer to exist, any Indebtedness, except:
(i) Obligations owing to Agent or any Lender under this Agreement or any of the other Loan DocumentsLender;
(ii) Indebtedness evidenced by the Subordinated Bonds and the other Subordinated Bond Documents (each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6, subject any Subsidiary of Borrower to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for in the Subordinated BondsBorrower;
(iii) Indebtedness evidenced accounts payable to trade creditors and obligations and accruals for current operating expenses (other than for Money Borrowed) which are not aged more than one hundred twenty (120) days from billing date or more than thirty (30) days from due date, in each case incurred in the ordinary course of business and paid within such time period, unless the same are being actively contested in good faith and by the Secured Bonds appropriate and the other Secured Bond Documentslawful proceedings; and Borrower or such Subsidiary shall have set aside such reserves, each if any, with respect thereto as in effect as of the date hereof are required by GAAP and deemed adequate by Borrower or as modified in compliance with subsection 8.2.6 (subject to clause (xiii) below)such Subsidiary and its independent accountants;
(iv) Indebtedness, including without limitation Subordinated Debt and intercompany indebtedness, existing as of the date of this Agreement and listed on Exhibit 8.2.3Obligations to pay Rentals permitted by subsection 8.2.9;
(v) Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Line;
(vi) contingent liabilities arising out of (A) guarantees permitted under subsection 8.2.6 or as otherwise permitted in this Agreement, (B) endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of businessbusiness and (C) payments under lease agreements, employment agreements and other agreements entered into in the ordinary course of business upon fair and reasonable terms;
(vii) guaranties Indebtedness owing by Borrower or any Subsidiary of Borrower to the Parent or to any Indebtedness permitted under this subsection 8.2.3;
(viii) Indebtedness other Affiliate in respect of Intercompany Loans;
(ix) unsecured Derivative Obligations intercompany advances or charges, PROVIDED such advances or charges are made and incurred in the ordinary course of business in respect pursuant to and consistent with prior practices of the Loans hereunderParent or any Affiliate of the Parent and so long as the interest rate corresponding to any such indebtedness does not exceed 8% per annum;
(viii) Indebtedness which is secured by real Property;
(ix) Subordinated Debt;
(x) [intentionally omitted];Indebtedness and other obligations of Borrower under the Asset Purchase Agreement; and
(xi) Indebtedness incurred in the ordinary course of business with respect to surety and appeal bonds, performance bonds and other similar obligations not to exceed $2,000,000 in the aggregate at any time outstanding;
(xii) Indebtedness not included in paragraphs (i) through (xix) above above, or not otherwise specifically permitted under this Agreement, which does not exceed at any time, in the aggregate, $15,000,000;
(xiii) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, Three Hundred Thousand Dollars (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced$300,000), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,000.
Appears in 1 contract
Samples: Loan and Security Agreement (Eagle Supply Group Inc)
Total Indebtedness. Create, incur, assume, or suffer to exist, or permit any of its their respective Subsidiaries to create, incur or suffer to exist, any Indebtedness, except:
(i) Obligations owing to Agent or any Lender under this Agreement or any of the other Loan Documentsand Lenders;
(ii) Indebtedness evidenced by the The Junior Subordinated Bonds Debt and the other Subordinated Bond Documents (each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6Indebtedness, subject to clause (xiii) below)if any, so long as such Indebtedness remains subordinated relating to the Obligations pursuant to the subordination provisions provided for in the Subordinated BondsPreferred Stock;
(iii) Indebtedness evidenced of a Borrower or a Subsidiary if and to the extent permitted by the Secured Bonds and the other Secured Bond Documents, each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6 (subject to clause (xiii) below)SECTION 8.2.2;
(iv) IndebtednessAccounts payable to trade creditors and current operating expenses (other than for Money Borrowed) ninety percent (90%) of which are aged not more than 45 days from the due date, including without limitation Subordinated Debt and intercompany indebtednessor, existing as if aged outside of the date preceding parameters, that are being Properly Contested, but in each case initially incurred in the ordinary course of this Agreement business and listed on Exhibit 8.2.3either paid within such time period or, if being Properly Contested at the time and in the manner contemplated in the definition of the term "Properly Contested";
(v) Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Linepay Rentals permitted by SECTION 8.2.16;
(vi) contingent Permitted Purchase Money Indebtedness;
(vii) Contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(vii) guaranties of any Indebtedness permitted under this subsection 8.2.3;
(viii) Indebtedness in respect Capitalized Lease Obligations to the extent the underlying Capital Lease is permitted by the terms of Intercompany LoansSECTION 8.2.9;
(ix) unsecured Derivative Obligations incurred in the ordinary course of business Indebtedness in respect of the Loans hereunderto deferred Taxes;
(x) [intentionally omitted];Indebtedness existing on the Closing Date and described in EXHIBIT T attached hereto; and
(xi) Indebtedness incurred in the ordinary course of business with respect to surety and appeal bonds, performance bonds and other similar obligations not to exceed $2,000,000 in the aggregate at any time outstanding;
(xii) Indebtedness not included in paragraphs (i) through (xix) above which by its terms is unsecured and does not exceed at any time, in the aggregate, $15,000,000;
(xiii) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, Five Hundred Thousand Dollars (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced$500,000), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,000.
Appears in 1 contract
Total Indebtedness. Create, incur, assume, or suffer to exist, or permit any Subsidiary of its Subsidiaries Borrower to create, incur or suffer to exist, any IndebtednessIndebtedness for Money Borrowed, except:
(i) Obligations owing to Agent or any Lender under under, or arising from, this Agreement or any of the other Loan Documents;
(ii) Indebtedness evidenced by under the Subordinated Bonds Indentures (and all related agreements, instruments and documents) and the other Subordinated Bond Documents City Loan Agreement (and all related agreements, instruments and documents), in each as in effect as of case to the extent outstanding on the date hereof or as modified in compliance with subsection 8.2.6, subject to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for in the Subordinated Bondshereof;
(iiia) Indebtedness evidenced by under the Secured Bonds Exchange Instruments (and the other Secured Bond Documentsall related agreements, each as instruments and documents) and (b) Indebtedness in effect as respect of the Series C Preferred, in each case to the extent outstanding on the date hereof or as modified in compliance with subsection 8.2.6 (subject to clause (xiii) below)hereof;
(iv) Indebtedness, including without limitation Subordinated Debt and intercompany indebtedness, existing as of the date of this Agreement and listed on Exhibit 8.2.3 or otherwise approved by Majority Lenders;
(v) other Indebtedness listed on Exhibit 8.2.3;
(vvi) Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Line;
(vivii) contingent liabilities (including any relating reserves) arising out of from endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(viiviii) guaranties Guaranties of any Indebtedness permitted under this subsection 8.2.3;
(viii) Indebtedness in respect of Intercompany Loanshereunder;
(ix) unsecured Derivative Obligations incurred in the ordinary course of business in respect of the Loans hereunderGO/RD Indebtedness;
(x) [intentionally omitted]the Prepetition Obligations;
(xi) Indebtedness incurred in the ordinary course of business with respect permitted pursuant to surety and appeal bonds, performance bonds and other similar obligations not to exceed $2,000,000 in the aggregate at any time outstandingsubsection 8.2.2(v);
(xii) Indebtedness in respect of financed insurance premiums;
(xiii) Indebtedness in respect of the Series D Preferred; and
(xiv) Indebtedness not included in paragraphs (i) through (xixiii) above which does not exceed at any time, in the aggregate, $15,000,000;
(xiii) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,0001,500,000.
Appears in 1 contract
Total Indebtedness. Create, incur, assume, or suffer to exist, or permit any Subsidiary of its Subsidiaries Borrower to create, incur or suffer to exist, any IndebtednessIndebtedness for Money Borrowed, except:
(i) Obligations owing to Agent or any Lender under under, or arising from, this Agreement or any of the other Loan Documents;
(ii) Indebtedness evidenced by under the Subordinated Bonds Indentures (and all related agreements, instruments and documents) and the other Subordinated Bond Documents City Loan Agreement (each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6and all related agreements, subject to clause (xiii) belowinstruments and documents), so long as such Indebtedness remains subordinated in each case to the Obligations pursuant to the subordination provisions provided for in the Subordinated Bonds;
(iii) Indebtedness evidenced by the Secured Bonds and the other Secured Bond Documents, each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6 (subject to clause (xiii) below);
(iv) Indebtedness, including without limitation Subordinated Debt and intercompany indebtedness, existing as of extent outstanding on the date of this Agreement and listed on Exhibit 8.2.3.; provided, however, that if the Permitted Note Exchange Offer is completed and Exchange Notes are issued in exchange for such Indebtedness, the amount of Indebtedness permitted to be outstanding under this clause (ii) shall be reduced by the amount of Indebtedness accepted for exchange;
(iii) after the completion of the Permitted Note Exchange Offer, Indebtedness under the Exchange Indentures (and all related agreements, instruments and documents);
(iv) Subordinated Debt listed on Exhibit 8.2.3 or otherwise approved by Majority Lenders;
(v) Capitalized Lease Obligations and Permitted Purchase Money other Indebtedness not to exceed in the aggregate at any time outstanding the greater of (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Linelisted on Exhibit 8.2.3;
(vi) Derivative Obligations deemed acceptable by Majority Lenders;
(vii) Permitted Purchase Money Indebtedness;
(viii) contingent liabilities (including any relating reserves) arising out of from endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(viiix) guaranties Guaranties of any Indebtedness permitted under this subsection 8.2.3;
(viii) Indebtedness in respect of Intercompany Loans;
(ix) unsecured Derivative Obligations incurred in the ordinary course of business in respect of the Loans hereunder;
(x) [intentionally omitted]Capitalized Lease Obligations incurred in connection with a Permitted GO Transaction and/or a Permitted RD Transaction;
(xi) Indebtedness incurred in the ordinary course of business connection with respect to surety and appeal bonds, performance bonds and other similar obligations not to exceed $2,000,000 in the aggregate at any time outstandinga Permitted Tandem Mill Transaction;
(xii) Indebtedness permitted pursuant to subsection 8.2.2(v);
(xiii) Indebtedness not included in paragraphs (i) through (xixii) above which does not exceed at any time, in the aggregate, the sum of $15,000,000;5,000,000; and
(xiiixiv) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness for Money Borrowed and permitted under the foregoing clauses clause (iiv), (v), (vii) through (xiiix), (x) of this subsection 8.2.3or (xi) above, so long as provided that (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced repaid at the time of refinancingrepayment, plus reasonable direct expenses of such refinancing, (b) the refinancing Indebtedness is secured only by Liens on assets, if any, assets that secured the Indebtedness being refinancedrepaid, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinancedbe repaid, (d) the refinancing Indebtedness has terms that are not materially more adverse in any material respect to Agent, Lenders or the applicable restrictive on Borrower or Subsidiary of a Borrower and its Subsidiaries than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced), repaid and (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if incurred by any Subsidiary of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) Borrower is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date used to repay Indebtedness of any such incurrence Borrower or another Subsidiary of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,000Borrower.
Appears in 1 contract
Total Indebtedness. Create, incur, assume, or suffer to exist, or permit any Subsidiary of its Subsidiaries Borrower to create, incur or suffer to exist, any IndebtednessIndebtedness for Money Borrowed, except:
(i) Obligations owing to Agent or any Lender under under, or arising from, this Agreement or any of the other Loan Documents;
(ii) Indebtedness evidenced by under the Subordinated Bonds Indentures (and all related agreements, instruments and documents) and the other Subordinated Bond Documents City Loan Agreement (and all related agreements, instruments and documents), in each as in effect as case to the extent outstanding on the Effective Date after completion of the date hereof or as modified in compliance with subsection 8.2.6, subject to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for in the Subordinated BondsPermitted Note Exchange Offer;
(iii) Indebtedness evidenced by after the Secured Bonds and the other Secured Bond Documents, each as in effect as completion of the date hereof or as modified Permitted Note Exchange Offer, (a) Indebtedness under the Exchange Instruments (and all related agreements, instruments and documents) and (b) Indebtedness in compliance with subsection 8.2.6 (subject to clause (xiii) below)respect of the Series C Preferred;
(iv) Indebtedness, including without limitation Subordinated Debt and intercompany indebtedness, existing as of the date of this Agreement and listed on Exhibit 8.2.3EXHIBIT 8.2.3 or otherwise approved by Majority Lenders;
(v) Capitalized Lease Obligations and Permitted Purchase Money other Indebtedness not to exceed in the aggregate at any time outstanding the greater of (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Linelisted on EXHIBIT 8.2.3;
(vi) Derivative Obligations deemed acceptable by Majority Lenders;
(vii) Permitted Purchase Money Indebtedness;
(viii) contingent liabilities (including any relating reserves) arising out of from endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(viiix) guaranties Guaranties of any Indebtedness permitted under this subsection 8.2.3;
(viii) Indebtedness in respect of Intercompany Loans;
(ix) unsecured Derivative Obligations incurred in the ordinary course of business in respect of the Loans hereunder;
(x) [intentionally omitted]Capitalized Lease Obligations incurred in connection with a Permitted GO Transaction and/or a Permitted RD Transaction;
(xi) Indebtedness incurred in the ordinary course of business connection with respect to surety and appeal bonds, performance bonds and other similar obligations not to exceed $2,000,000 in the aggregate at any time outstandinga Permitted Tandem Mill Transaction;
(xii) Indebtedness permitted pursuant to subsection 8.2.2(v);
(xiii) Indebtedness in respect of financed insurance premiums;
(xiv) Indebtedness not included in paragraphs (i) through (xixiii) above which does not exceed at any time, in the aggregate, the sum of $15,000,000;5,000,000; and
(xiiixv) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness for Money Borrowed and permitted under the foregoing clauses clause (iiv), (v), (vii) through (xiiix), (x) of this subsection 8.2.3or (xi) above, so long as provided that (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced repaid at the time of refinancingrepayment, plus reasonable direct expenses of such refinancing, (b) the refinancing Indebtedness is secured only by Liens on assets, if any, assets that secured the Indebtedness being refinancedrepaid, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinancedbe repaid, (d) the refinancing Indebtedness has terms that are not materially more adverse in any material respect to Agent, Lenders or the applicable restrictive on Borrower or Subsidiary of a Borrower and its Subsidiaries than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced), repaid and (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if incurred by any Subsidiary of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) Borrower is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date used to repay Indebtedness of any such incurrence Borrower or another Subsidiary of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,000Borrower.
Appears in 1 contract
Total Indebtedness. Create, incur, assume, or suffer to exist, or permit any Subsidiary of its Subsidiaries Borrower to create, incur or suffer to exist, any Indebtedness, except:
(i) Obligations owing to Agent or any Lender under this Agreement or any of the other Loan DocumentsLender;
(ii) Indebtedness evidenced by the Subordinated Bonds and the other Subordinated Bond Documents (each as in effect as of Debt existing on the date hereof or as modified in compliance with subsection 8.2.6, subject to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for in the Subordinated Bondsof this Agreement;
(iii) Indebtedness evidenced Unsecured (except as may be cash-collateralized below) letters of credit and letter of credit guaranties issued by the Secured Bonds Existing Lender set forth on Exhibit 8.2.3, to the extent the same are cash-collateralized with the proceeds of Loans made hereunder or are supported by LC Guaranties or Letters of Credit caused to be issued hereunder; provided, however, that such Letters of Credit and Letter of Credit Guaranties issued by the other Secured Bond Documents, each Existing Lender shall not be renewed and shall be terminated or permitted to expire as in effect soon as of the date hereof or as modified in compliance with subsection 8.2.6 (subject to clause (xiii) below)practicable;
(iv) Indebtednessaccounts payable to trade creditors and current operating expenses (other than for Money Borrowed) which are not aged more than 120 days from billing date or more than 90 days from the due date, including without limitation Subordinated Debt in each case incurred in the ordinary course of business and intercompany indebtednesspaid within such time period, existing unless the same are being actively contested in good faith and by appropriate and lawful proceedings; and Borrower or such Subsidiary shall have set aside such reserves, if any, with respect thereto as of the date of this Agreement are required by GAAP and listed on Exhibit 8.2.3deemed adequate by Borrower or such Subsidiary and its independent accountants;
(v) Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of pay Rentals permitted by subsection 8.2.13;
(xvi) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Line;
(vivii) contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(vii) guaranties of any Indebtedness permitted under this subsection 8.2.3;
(viii) Indebtedness in respect of Intercompany Loans;
(ix) unsecured Derivative Obligations incurred in the ordinary course of business in respect of the Loans hereunder;
(x) [intentionally omitted];
(xi) Indebtedness incurred in the ordinary course of business with respect to surety and appeal bonds, performance bonds and other similar obligations not to exceed $2,000,000 in the aggregate at any time outstanding;
(xii) Indebtedness not included in paragraphs (i) through (xi) above which does not exceed at any time, in the aggregate, $15,000,000;
(xiii) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,000.
Appears in 1 contract
Samples: Loan and Security Agreement (First Aviation Services Inc)
Total Indebtedness. CreateWhen a Covenant Suspension Period is not in effect, incurHoldings will not, assume, or suffer to exist, or and will not permit any of its Subsidiaries to to, create, incur incur, assume or suffer permit to exist, exist any Indebtedness, Indebtedness except:
(ia) Obligations owing to Agent or Indebtedness of any Lender Loan Party under this Agreement or any of the other Loan Documents;
(iib) Indebtedness evidenced of any Subsidiary to Holdings, any Borrower or any other Subsidiary, or of Holdings to any Subsidiary; provided that (i) subject to Section 5.10, any such Indebtedness owing by any Loan Party to a Person that is not a Loan Party shall be expressly subordinated in right of payment to the Subordinated Bonds and the other Subordinated Bond Documents (each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6Obligations, subject to clause the terms of any Intercreditor Agreement and (xiiiii) below), so long as any such Indebtedness remains subordinated owing by any Person that is not a Loan Party to any Loan Party shall be evidenced by an intercompany note pledged to the Obligations Administrative Agent pursuant to the subordination provisions provided for in terms of the Subordinated BondsCollateral Documents to the extent required thereby;
(iiic) Indebtedness evidenced arising from the honoring by the Secured Bonds and the a bank or other Secured Bond Documentsfinancial institution of a check, each as in effect as draft or similar instrument of the date hereof or as modified in compliance with subsection 8.2.6 (subject to clause (xiii) below);
(iv) Indebtedness, including without limitation Subordinated Debt and intercompany indebtedness, existing as of the date of this Agreement and listed on Exhibit 8.2.3;
(v) Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Line;
(vi) contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection a Subsidiary drawn against insufficient funds in the ordinary course of business;
(viid) guaranties Indebtedness of any Indebtedness permitted under this subsection 8.2.3an account party in respect of trade letters of credit;
(viiie) Indebtedness obligations arising from tax increment financings and other similar arrangements with Governmental Authorities and credit support (including, without limitation, letters of credit and lines of credit) provided in respect of Intercompany Loansconnection therewith;
(ixf) unsecured Derivative Obligations intercompany current liabilities between Holdings and its Subsidiaries incurred in the ordinary course of business in connection with the cash management operations of Holdings and its Subsidiaries;
(g) cash management obligations and other Indebtedness incurred in the ordinary course of business in respect of the Loans hereundernetting services, overdraft protections and similar arrangements in each case in connection with cash management, deposit accounts and securities accounts;
(xh) [intentionally omitted](i) Permitted Refinancing Indebtedness in respect of the Specified Private Placement incurred on the Amendment No. 3 Closing Date (which Permitted Refinancing Indebtedness, if incurred to refinance the Specified Private Placement in whole, shall be in an aggregate principal amount at any time outstanding not to exceed the Specified Debt Cap), and Permitted Refinancing Indebtedness in respect thereof, or (ii) if the Indebtedness described in the foregoing clause (i) is not incurred on the Amendment No. 3 Closing Date, other Indebtedness that satisfies the requirements of clauses (a), (c) and (d) of the definition of “Permitted Refinancing Indebtedness” in an aggregate principal amount outstanding at any time not to exceed the Specified Debt Cap, and any Permitted Refinancing Indebtedness in respect thereof;
(xii) the Existing CF Notes and any Permitted Refinancing Indebtedness in respect thereof;
(j) Indebtedness not otherwise permitted under this Section 6.5 in an aggregate principal amount at any time outstanding not to exceed, when aggregated with the aggregate principal amount of any Commitment Increases made pursuant to Section 2.19 and any Incremental Facilities established or incurred pursuant to Section 2.20, in each case after the ordinary course of business Amendment No. 3 Closing Date, $500,000,000;
(k) Indebtedness with respect to letters of credit, letters of guaranty, surety and appeal bonds, performance bonds and other or similar obligations (including, for the avoidance of doubt, Secured Bilateral LC Obligations); provided the aggregate outstanding amount of Indebtedness with respect to all such letters of credit, letters of guaranty, surety bonds or similar arrangements do not to exceed $2,000,000 300,000,000 in the aggregate at any time outstanding;
(xiil) Guarantees by Holdings or any of its Subsidiaries in respect of Indebtedness of Holdings or any of its Subsidiaries or any Excluded Subsidiary to the extent not included in paragraphs (i) through (xi) above which does not exceed at any timeprohibited by Section 6.8, in the aggregate, $15,000,000;
(xiii) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, each case so long as such Guarantee is (ax) subordinated in right of payment to the Obligations to at least the same extent as such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount ofIndebtedness, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, (by) the refinancing Indebtedness is not secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, having greater priority (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated relation to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with ) than the Liens securing such Indebtedness;
(m) obligations in respect of workers compensation claims, health, disability or other employee benefits, unemployment insurance and other social security laws or regulations or property, casualty or liability insurance and premiums related thereto, self-insurance obligations, obligations in respect of bids, tenders, trade contracts, governmental contracts and leases, statutory obligations, customs, surety, stay, appeal and performance bonds, and performance and completion guarantees and similar obligations (including any bonds or letters of credit issued with respect thereto and all guaranties, reimbursement and indemnity agreements entered into in connection therewith) incurred by Holdings or any of its Subsidiaries, in each case in the ordinary course of business;
(n) to the extent constituting Indebtedness, customary indemnification and purchase price adjustments or similar obligations (including earn-outs) incurred or assumed in connection with Investments or Dispositions not otherwise prohibited hereunder;
(o) to the extent constituting Indebtedness, unfunded pension fund and other employee benefit plan obligations and liabilities to the extent they are permitted to remain unfunded under applicable law;
(p) to the extent constituting Indebtedness, deferred compensation or similar arrangements payable to future, present or former directors, officers, employees, or members of management of Holdings or any of its Subsidiaries;
(q) Indebtedness in respect of repurchase agreements constituting Cash Equivalents, including the obligation to repurchase securities thereunder;
(r) Indebtedness in respect of Taxes, assessments, governmental charges or levies and claims for labor, materials and supplies, in each case not yet overdue for a period of more than sixty (60) days or which are being refinanced contested in good faith by appropriate proceedings and for which adequate reserves have been set aside in accordance with GAAP or other applicable accounting rules;
(gs) if Indebtedness in respect of judgments or awards only to the extent, for the period and for an amount not resulting in an Event of Default;
(t) Indebtedness in respect of any letter of credit or bank guarantee issued in favor of any Issuing Bank to support any Defaulting Lender’s participation in Letters of Credit issued by such Issuing Bank;
(u) customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(v) Indebtedness of Holdings or any Subsidiary incurred to finance the acquisition, construction, repair, development or improvement of any property, plant or equipment (including Capital Lease Obligations), and any modifications, extensions, exchanges, defeasements, restructurings, renewals, refinancings, refundings, and replacements of any such Indebtedness being refinanced that do not increase the outstanding principal amount thereof, plus accrued interest, premium thereon and any original issue discount pursuant to the terms thereof, plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection therewith; provided that such Indebtedness is incurred prior to or within 270 days after such acquisition or the completion of such construction, repair, development or improvement and provided, further, that the principal amount of Indebtedness evidenced secured by any Lien shall at no time exceed 100% of the Secured Bondscost of acquiring, constructing, repairing, developing or improving such property; provided that the aggregate principal amount of Indebtedness outstanding pursuant to this Section 6.5(v) shall not exceed $250,000,000 at any time;
(w) Indebtedness outstanding on the Amendment No. 3 Closing Date and set forth on Schedule 6.5 and any modifications, extensions, exchanges, defeasements, restructurings, renewals, refinancings, refundings, and replacements of any such refinancing Indebtedness shall be subject that do not increase the outstanding principal amount thereof, plus accrued interest, premium thereon and any original issue discount pursuant to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreementthereof, plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection therewith; and
(xivx) Indebtedness incurred where (a) average Availability (as determined of any Person that becomes a Subsidiary after the Amendment No. 3 Closing Date, or that is secured by Agent in its reasonable credit judgment) for an asset when such asset is acquired by Holdings or a Subsidiary after the thirty (30) day period ending on the date Amendment No. 3 Closing Date, and any modifications, extensions, exchanges, defeasements, restructurings, renewals, refinancings, refundings, and replacements of any such incurrence of Indebtedness (giving effect that do not increase the outstanding principal amount thereof, plus accrued interest, premium thereon and any original issue discount pursuant to such incurrence of Indebtedness the terms thereof, plus other reasonable amounts paid, and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 fees and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtednessexpenses reasonably incurred, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, ; provided that such Indebtedness exists at the time such Person becomes a Subsidiary (or such asset is acquired) and is not less than $25,000,000created in contemplation of or in connection with such Person becoming a Subsidiary (or such asset being acquired).
Appears in 1 contract
Samples: Revolving Credit Agreement (CF Industries Holdings, Inc.)
Total Indebtedness. Create, incur, assume, or suffer to exist, or permit any Subsidiary of its Subsidiaries Borrower to create, incur or suffer to exist, any Indebtedness, except:
(i) Obligations owing to Agent or any Lender under this Agreement or any of the other Loan Documentsand Lenders;
(ii) Indebtedness evidenced by the Subordinated Bonds and the other Subordinated Bond Documents (each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6, subject any Subsidiary of Borrower to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for in the Subordinated BondsBorrower;
(iii) Indebtedness evidenced accounts payable to trade creditors and current operating expenses (other than for Funded Debt) which are not aged more than 30 days from the due date, in each case incurred in the ordinary course of business and paid within such time period, unless the same are being actively contested in good faith and by the Secured Bonds appropriate and the other Secured Bond Documentslawful proceedings; and Borrower or such Subsidiary shall have set aside such reserves, each if any, with respect thereto as in effect as of the date hereof are required by GAAP and deemed adequate by Borrower or as modified in compliance with subsection 8.2.6 (subject to clause (xiii) below)such Subsidiary and its independent accountants;
(iv) Indebtedness, including without limitation Subordinated Debt and intercompany indebtedness, existing as of the date of this Agreement and listed on Exhibit 8.2.3Obligations to pay Rentals permitted by Section 8.2.18;
(v) Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Line;
(vi) contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(vii) guaranties of any Indebtedness permitted under this subsection 8.2.3Capitalized Leases listed on Exhibit 7.1.22;
(viii) Indebtedness incurred in respect of Intercompany Loansconnection with performance bonds, workmen’s compensation bonds or the like;
(ix) unsecured Derivative Obligations incurred in Indebtedness under the ordinary course leases of business in respect of the Loans hereunderBorrower’s manufacturing plants at 2000 Xxxxxx Xxx, Xxxxxx, Xxxxxx and at 100 Xxxx Xxxxxx X, Xxxxxx, Xxxxx;
(x) [intentionally omitted]Indebtedness under the leases of real Property at 2000 Xxxx xx Xxxxxx Xxxx, Xxxxxx, Xxxxxxxxxx, 8000 Xxxxxx 000, Xxxxxxx, Xxxxxxxxxx and 1000 Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxx;
(xi) Indebtedness incurred in under the ordinary course of business with respect to surety Sale and appeal bonds, performance bonds and other similar obligations not to exceed $2,000,000 in the aggregate at any time outstandingLeaseback Documents;
(xii) Subordinated Debt outstanding pursuant to the 2004 Subordinated Note Documents and the 2004 Equity Documents;
(xiii) Indebtedness incurred pursuant to the ETI Subordinated Note and;
(xiv) Indebtedness not included in paragraphs (i) through (xixiii) above which does not exceed at any time, in the aggregate, $15,000,000;
(xiii) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,0001,000,000.
Appears in 1 contract
Total Indebtedness. Create, incur, assume, or suffer to exist, or permit any Subsidiary of its Subsidiaries Borrower to create, incur or suffer to exist, any Indebtedness, except:
(i) Obligations owing to Agent or any Lender under this Agreement or any of the other Loan Documentsand Lenders;
(ii) Indebtedness evidenced by the Seller Subordinated Bonds and the other Subordinated Bond Documents (each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6, subject to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for in the Subordinated BondsDebt;
(iii) Indebtedness evidenced by the Secured Bonds and the other Secured Bond Documents, each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6 (subject any Subsidiary of Borrower to clause (xiii) below)Borrower;
(iv) Indebtednessaccounts payable to trade creditors and current operating expenses (other than for Money Borrowed) which are not aged more than 120 days from billing date or more than 60 days from the due date, including without limitation Subordinated Debt in each case incurred in the ordinary course of business and intercompany indebtednesspaid within such time period, existing unless the same are being actively contested in good faith and by appropriate and lawful proceedings; and Borrower or such Subsidiary shall have set aside such reserves, if any, with respect thereto as of the date of this Agreement are required by GAAP and listed on Exhibit 8.2.3deemed adequate by Borrower or such Subsidiary and its independent accountants;
(v) Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of pay Rentals permitted by Section 8.2.13;
(xvi) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Line;
(vivii) contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(vii) guaranties of any Indebtedness permitted under this subsection 8.2.3;
(viii) Indebtedness Capital Lease Obligations to the extent permitted by Section 8.2.8 in respect an aggregate principal amount of Intercompany Loansnot more than $750,000;
(ix) unsecured Derivative Obligations incurred Indebtedness in respect to deferred taxes;
(x) Indebtedness relating to compensation owed to Borrower's employees for services rendered in the ordinary course of business in respect of the Loans hereunder;
(x) [intentionally omitted]business;
(xi) Indebtedness incurred all unfunded pension and other employee benefit plan obligations and liabilities but only to the extent they are permitted to remain unfunded under applicable law;
(xii) insurance reserves created in the ordinary course of business with respect to surety and appeal bonds, performance bonds and other similar obligations not to exceed $2,000,000 in the aggregate at any time outstanding;business; and
(xiixiii) Indebtedness not included in paragraphs (i) through (xixii) above which does not exceed at any time, in the aggregate, $15,000,000;
(xiii) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,000500,000.
Appears in 1 contract
Samples: Loan and Security Agreement (Houston Wire & Cable CO)
Total Indebtedness. Create, incur, assume, or suffer to exist, or permit any Subsidiary of its Subsidiaries Obligor to create, incur incur, or suffer to exist, any Indebtedness, except:
(ia) Obligations owing to Agent or any the Lender under this Agreement or any of the other Loan DocumentsGroup;
(iib) QOC may incur the Subordinated Obligations;
(c) QFC may incur the Seller Note Obligations;
(d) Each of the relevant Obligors may incur the Earn-Out Obligations specifically identified to them on Schedule E-1;
(e) Indebtedness identified on Schedule 8.2.3;
(f) Indebtedness of any Subsidiary of Borrower to Borrower;
(g) accounts payable to trade creditors and current operating expenses (other than for Money Borrowed) which are not aged more than 120 days from billing date or more than 30 days from the due date, in each case, incurred in the ordinary course of business and paid within such time period, unless the same are being actively contested in good faith and by appropriate and lawful proceedings, and Obligor or such Subsidiary shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Obligor or such Subsidiary and its independent accountants;
(h) Obligations to pay Rentals permitted by Section 8.2.13 hereof;
(i) Permitted Purchase Money Indebtedness;
(j) Subordinated Debt in amounts and on terms acceptable to the Required Lenders;
(k) Indebtedness evidenced by the Subordinated Bonds and the other Subordinated Bond Documents (each as in effect as Permitted Interest Rate or Currency Protection Agreements of the date hereof or as modified in compliance with subsection 8.2.6, subject to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for in the Subordinated BondsObligors;
(iii) Indebtedness evidenced by the Secured Bonds and the other Secured Bond Documents, each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6 (subject to clause (xiii) below);
(iv) Indebtedness, including without limitation Subordinated Debt and intercompany indebtedness, existing as of the date of this Agreement and listed on Exhibit 8.2.3;
(v) Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Line;
(vil) contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(viim) guaranties refinancings, renewals, or extensions of any Indebtedness permitted under clause (b) of this subsection 8.2.3Section 8.2.3 so long as the terms and conditions of the refinancing Indebtedness are no less favorable to the Lender Group as determined by the Collateral Agent in its sole discretion;
(viii) Indebtedness in respect of Intercompany Loans;
(ix) unsecured Derivative Obligations incurred in the ordinary course of business in respect of the Loans hereunder;
(x) [intentionally omitted];
(xi) Indebtedness incurred in the ordinary course of business with respect to surety and appeal bonds, performance bonds and other similar obligations not to exceed $2,000,000 in the aggregate at any time outstanding;
(xiin) Indebtedness not included in paragraphs (ia) through (xim) above which does not exceed at any time, in the aggregate, $15,000,000;
(xiii) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement$250,000; and
(xivo) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,000Guarantees permitted under Section 8.2.18 hereof.
Appears in 1 contract
Samples: Loan and Security Agreement (Questron Technology Inc)
Total Indebtedness. Create, incur, assume, or suffer to exist, or permit any Subsidiary of its Subsidiaries any Borrower to create, incur or suffer to exist, any Indebtedness, except:
(i) Obligations owing to Agent or any Lender under this Agreement or any of the other Loan DocumentsAgreement;
(ii) Indebtedness evidenced by the Subordinated Bonds and the other Subordinated Bond Documents (each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6, subject to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for in the Subordinated Bonds;
(iii) Indebtedness evidenced by the Secured Bonds and the other Secured Bond Documents, each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6 (subject to clause (xiii) below);
(iv) Indebtedness, including without limitation Subordinated Debt and intercompany indebtedness, existing as of on the date of this Agreement and listed on Exhibit 8.2.3.;
(iii) Indebtedness arising out of the refinancing, extension, renewal or refunding of any Indebtedness existing as of the Closing Date (including the Indebtedness owed to Lucent in connection with a telephone system) and listed on Exhibit 8.2.3; provided that such Indebtedness is not increased and is not secured by additional assets;
(iv) Permitted Purchase Money Indebtedness;
(v) Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Line;
(vi) contingent Contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(viivi) guaranties of any Indebtedness permitted under this subsection 8.2.3Subordinated Debt;
(viiivii) Indebtedness in respect of Intercompany Loans;
(ix) unsecured Derivative Obligations incurred To the extent not mentioned above, trade payables, accrued expenses, income taxes payable, deferrals including deferred compensation and deferred income taxes, reserves including environmental reserves and warranty reserves, operating leases, accruals and accounts payable in the ordinary course of business (in respect of each case to the Loans hereunderextent not overdue and not for Money Borrowed and in each case determined in accordance with GAAP);
(x) [intentionally omitted];
(xi) Indebtedness incurred in the ordinary course of business with respect to surety and appeal bonds, performance bonds and other similar obligations not to exceed $2,000,000 in the aggregate at any time outstanding;
(xiiviii) Indebtedness not included in paragraphs (i) through (xii)—(vii) above which does not exceed at any time, in the aggregate, the sum of $15,000,000500,000;
(xiiiix) subject Indebtedness consisting of intercompany loans and advances made by any Borrower to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses such other Borrower; provided that (i) through each Borrower shall have executed and delivered to the other Borrower a demand note (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect ofcollectively, the Indebtedness being refinanced at the time of refinancing"Intercompany Notes") to evidence such Indebtedness, plus reasonable direct expenses of such refinancing, (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse which Intercompany Notes shall be in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial form and substance satisfactory to Agent and Lenders as shall be pledged and delivered to Agent pursuant to the subordination terms associated with such Subordinated Debt being refinancedPledge Agreement, (fii) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligationseach Borrower shall record all intercompany transactions on its books and records, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (giii) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall no Default or Event of Default would occur and be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, continuing after giving effect to any such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,000proposed intercompany loan.
Appears in 1 contract
Total Indebtedness. CreateNo Guarantor shall create, incur, assume, or suffer to exist, or permit any of its Subsidiaries to create, incur or suffer to exist, any Indebtedness, except:
(i) Obligations owing to Agent or any Lender under this Agreement or any Senior Debt and Indebtedness permitted by the provisions of the other Loan Documentsdocumentation governing the Senior Debt;
(ii) Indebtedness evidenced by the Subordinated Bonds and the other Subordinated Bond Documents (each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6, subject to clause (xiii) below), so long as such Indebtedness remains any Guarantor and/or its Subsidiaries which is subordinated to the Guaranteed Obligations pursuant in a manner satisfactory to the subordination provisions provided for in the Subordinated BondsLender;
(iii) Indebtedness evidenced by the Secured Bonds Note and the other Secured Bond Documents, each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6 (subject to clause (xiii) below)any guaranty thereof;
(iv) Indebtedness, including without limitation Subordinated Debt and intercompany indebtedness, existing as Indebtedness of the date any Subsidiary of this Agreement and listed on Exhibit 8.2.3Borrower to Borrower or between any Subsidiary of Borrower;
(v) Capitalized Lease Obligations Accounts payable to trade creditors and Permitted Purchase current operating expenses (other than for Money Indebtedness Borrowed) which are not to exceed in aged more than 90 days from the aggregate at any time outstanding the greater of (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness)due date, in each case less incurred in the amount ordinary course of any refinancing Capitalized Lease Obligations business and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; providedpaid within such time period, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of unless the purchase price or cost of construction or improvement of the New Mold Linesame are being Properly Contested;
(vi) contingent Obligations to pay Rentals;
(vii) Permitted Purchase Money Indebtedness;
(viii) Contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(viiix) guaranties Indebtedness existing on the date hereof and described on Exhibit A hereto, and any extensions, renewals or refinancings thereof so long as (i) the principal amount thereof does not exceed the then outstanding principal amount of the Indebtedness being so extended, renewed or refinanced, and (ii) the amortization of principal on any such refinancings shall be for no shorter period, and for no greater annual amounts, than the original amortization established for such Indebtedness; and
(x) contingent obligations under any guarantee by any Guarantor or its Subsidiaries of any Indebtedness of the obligations of any other Subsidiary as lessee under any lease which is otherwise permitted under this subsection 8.2.3Agreement;
(viiixi) Indebtedness in respect constituting deposits to secure the performance of Intercompany Loans;
bids, trade contracts (ix) unsecured Derivative Obligations other than for Money Borrowed), leases, statutory obligations, surety and appeal bonds and performance bonds under other obligations of a like nature that are incurred in the ordinary course of business in respect of the Loans hereunder;
(x) [intentionally omitted];
(xi) Indebtedness incurred in the ordinary course of business with respect to surety and appeal bondsbusiness, performance bonds and other similar obligations not to exceed Five Hundred Thousand Dollars ($2,000,000 500,000) in the aggregate at any time outstanding;
(xii) indemnities arising under agreements entered into by Guarantor or any of its Subsidiaries in the ordinary course of business;
(xiii) Indebtedness arising on account of deferred taxes, deferred workers' compensation liabilities, or deferred employee medical liabilities; and
(xiv) Indebtedness not included in paragraphs (i) through (xixiii) above which does not exceed at any time, in the aggregate, $15,000,000;
(xiii) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, One Hundred Thousand Dollars (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced$100,000), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,000.
Appears in 1 contract
Total Indebtedness. Create, incur, assume, or suffer to exist, or permit any Subsidiary of its Subsidiaries any Borrower to create, incur or suffer to exist, any Indebtedness, except:
(i) Obligations owing to Agent or any Lender under this Agreement or any of the other Loan DocumentsLender;
(ii) Indebtedness evidenced by the Subordinated Bonds and the other Subordinated Bond Documents (each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6, subject any Subsidiary of Borrowers to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for in the Subordinated BondsBorrowers;
(iii) Indebtedness evidenced accounts payable to trade creditors and obligations and accruals for current operating expenses (other than for Money Borrowed) which are not aged more than one hundred twenty (120) days from billing date or more than thirty (30) days from due date, in each case incurred in the ordinary course of business and paid within such time period, unless the same are being actively contested in good faith and by the Secured Bonds appropriate and the other Secured Bond Documentslawful proceedings; and Borrowers or such Subsidiary shall have set aside such reserves, each if any, with respect thereto as in effect as of the date hereof are required by GAAP and deemed adequate by Borrowers or as modified in compliance with subsection 8.2.6 (subject to clause (xiii) below)such Subsidiary and their independent accountants;
(iv) Indebtedness, including without limitation Subordinated Debt and intercompany indebtedness, existing as of the date of this Agreement and listed on Exhibit 8.2.3Obligations to pay Rentals permitted by subsection 8.2.9;
(v) Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Line;
(vi) contingent liabilities arising out of (A) guarantees permitted under subsection 8.2.6 or as otherwise permitted in this Agreement, (B) endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of businessbusiness and (C) payments under lease agreements, employment agreements and other agreements entered into in the ordinary course of business upon fair and reasonable terms;
(vii) guaranties Indebtedness owing by Borrowers, or any of them, or any Subsidiary of any Indebtedness permitted under this subsection 8.2.3;
(viii) Indebtedness Borrower to the Parent or to any other Affiliate in respect of Intercompany Loans;
(ix) unsecured Derivative Obligations intercompany advances or charges, provided such advances or charges are made and incurred in the ordinary course of business in respect pursuant to and consistent with prior practices of the Loans hereunderParent or any Affiliate of the Parent and so long as the interest rate corresponding to any such indebtedness does not exceed 8% per annum;
(viii) Indebtedness which is secured by real Property;
(ix) Subordinated Debt;
(x) [intentionally omitted];Indebtedness and other obligations of Borrowers, or any of them, under those certain asset purchase agreements between (i) Masonry Supply, Inc. and MSI/Eagle Supply, Inc. dated as of October 22, 1998 and (ii) JEH Company and JEH/Eagle Supply, Inc. f/k/a/ JEH Acquisition Corp. dated as of July 8, 1997; and
(xi) Indebtedness incurred in the ordinary course of business with respect to surety and appeal bonds, performance bonds and other similar obligations not to exceed $2,000,000 in the aggregate at any time outstanding;
(xii) Indebtedness not included in paragraphs (i) through (xix) above above, or not otherwise specifically permitted under this Agreement, which does not exceed at any time, in the aggregate, $15,000,000;
(xiii) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, Two Million Dollars (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced$2,000,000), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,000.
Appears in 1 contract
Samples: Loan and Security Agreement (Eagle Supply Group Inc)
Total Indebtedness. Create, incur, assume, or suffer to exist, or permit any Subsidiary of its Subsidiaries Borrower to create, incur or suffer to exist, any Indebtedness, except:
(i) Obligations owing to Agent or any Lender under this Agreement or any of and the other Loan DocumentsLenders;
(ii) Indebtedness of any Foreign Subsidiary owed to Borrower, provided that any such Indebtedness shall not exceed $110,000,000 as of November 30, 1999, and any other such Indebtedness owing to Borrower (a) must be evidenced by intercompany notes that are pledged to Agent, for the Subordinated Bonds benefit of the Lenders, and (b) shall not exceed the other Subordinated Bond Documents sum of (each as in effect 1) the actual amount of Indebtedness of Foreign Subsidiaries owed to Borrower outstanding as of November 30, 1999 (not to exceed $110,000,000) plus an additional $3,000,000.00 plus (2) for periods subsequent to July 1, 2000, the date then applicable Average Gross Availability Amount. Borrower shall provide Agent with a schedule setting forth the proposed Average Gross Availability Amount within five (5) Business Days after the end of each month and at least five (5) Business Days prior to making any loan or advance that would constitute Indebtedness under clause (b)(2) hereof in order to obtain Agent's consent to any such loan or advance, which consent shall be granted in Agent's sole discretion. Agent's determination of the applicable Average Gross Availability Amount shall be binding and conclusive absent manifest error. In the event that, as modified a result of a decrease in the Average Gross Availability Amount, the outstanding Indebtedness addressed by this clause (ii) exceeds the amount permitted by this clause (ii), it shall not constitute a Default hereunder so long as Borrower is in compliance with subsection 8.2.6, subject to this clause (xiiiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for in the Subordinated Bondswithin 60 days thereafter;
(iii) Indebtedness evidenced by the Secured Bonds and the other Secured Bond Documentsof Borrower owed to any Subsidiary or of any Subsidiary owed to another Subsidiary or to a Foreign Affiliate, each as in effect as of the date hereof including any renewal, extension or as modified in compliance with subsection 8.2.6 (subject to clause (xiii) below)refinancing thereof;
(iv) Indebtedness, including without limitation Subordinated Debt and intercompany indebtedness, existing as of the date of this Agreement and listed on Exhibit 8.2.3Obligations to pay Rentals permitted by SUBSECTION 9.2.13;
(v) Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Line;
(vi) contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(vii) guaranties of any Indebtedness permitted arising under this subsection 8.2.3;the Indenture or the Term Loan Agreement; and
(viii) Indebtedness of Foreign Subsidiaries (other than Indebtedness described in respect SUBSECTION 9.2.3(II) OR (III) above) incurred, renewed, extended or refinanced when no Default exists or would result therefrom, provided that the aggregate amount of Intercompany Loansall such Indebtedness outstanding at any time shall not exceed the greater of (a) fifty percent (50%) of the aggregate book value of the accounts receivable (net of bad debt reserves) of such Foreign Subsidiaries or (b) $10,000,000;
(ix) unsecured Derivative Indebtedness of Foreign Subsidiaries to Agent or an Affiliate thereof which has been Guaranteed by Borrower, including any renewal, extension or refinancing thereof;
(x) Indebtedness existing on the date hereof and described on EXHIBIT T hereto;
(xi) Indebtedness not to exceed $4,000,000.00 owing to Proctor & Gamble Company arising from the licensing to Boxxxxxx of certain patents owned by Proctor & Gamble Company;
(xii) Capitalized Lease Obxxxxxxxns xx xxxg as such leases do not cover any property other than the property acquired in connection therewith, provided that the aggregate amount of all such Indebtedness outstanding at any time shall not exceed $1,500,000.00;
(xiii) Hedging Obligations incurred entered into in the ordinary course of business in respect order to hedge currency, commodity or interest rate risks, and not for purposes of the Loans hereunderspeculation;
(xxiv) [intentionally omitted]Permitted Borrower Refinancing Debt;
(xixv) Guarantees of Indebtedness by Borrower or any Subsidiary, provided that the Indebtedness subject to such Guarantee, if incurred in the ordinary course of business with respect to surety and appeal bondsdirectly rather than by a Guarantee by Borrower or such Subsidiary, performance bonds and other similar obligations not to exceed $2,000,000 in the aggregate at any time outstandingwould otherwise be permitted under this SUBSECTION 9.2.3;
(xiixvi) Indebtedness not included in paragraphs (i) through (xixv) above which does not exceed at any time, in the aggregate, $15,000,000;
(xiii) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,0001,000,000.00.
Appears in 1 contract
Samples: Credit Agreement (Drypers Corp)
Total Indebtedness. Create, incur, assume, or suffer to exist, or permit any Subsidiary of its Subsidiaries any Borrower to create, incur or suffer to exist, any Indebtedness, except:
(ia) Obligations owing to Agent or any Lender under this Agreement or any of the other Loan DocumentsLenders;
(iib) Indebtedness evidenced by the Subordinated Bonds and the other Subordinated Bond Documents (each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6, subject any Subsidiary of Borrowers to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for in the Subordinated BondsBorrowers;
(iiic) Indebtedness evidenced accounts payable to trade creditors and obligations and accruals for current operating expenses (other than for Money Borrowed) which are not aged more than one hundred twenty (120) days from billing date or more than forty five (45) days from due date, in each case incurred in the ordinary course of business and paid within such time period, unless the same are being actively contested in good faith and by the Secured Bonds appropriate and the other Secured Bond Documentslawful proceedings; and Borrowers or such Subsidiary shall have set aside such reserves, each if any, with respect thereto as in effect as of the date hereof are required by GAAP and deemed adequate by Borrowers or as modified in compliance with subsection 8.2.6 (subject to clause (xiii) below)such Subsidiary and their independent accountants;
(ivd) Indebtedness, including without limitation Subordinated Debt and intercompany indebtedness, existing as of the date of this Agreement and listed on Exhibit 8.2.3Obligations to pay Rentals permitted by subsection 8.2.9;
(ve) Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Line;
(vif) contingent liabilities arising out of (A) guarantees permitted under subsection 8.2.6 or as otherwise permitted in this Agreement, (B) endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of businessbusiness and (C) payments under lease agreements, employment agreements and other agreements entered into in the ordinary course of business upon fair and reasonable terms;
(viig) guaranties Indebtedness owing by Borrowers, or any of them, or any Subsidiary of any Indebtedness permitted under this subsection 8.2.3;
(viii) Indebtedness Borrower to the Guarantor or to any other Affiliate in respect of Intercompany Loans;
(ix) unsecured Derivative Obligations intercompany advances or charges, provided such advances or charges are made and incurred in the ordinary course of business in respect pursuant to and consistent with prior practices of the Loans hereunderGuarantor or any Affiliate of the Guarantor and so long as the interest rate corresponding to any such indebtedness does not exceed 8.75% per annum;
(xh) [intentionally omitted]Indebtedness which is secured by real Property;
(xii) Indebtedness incurred in the ordinary course of business with respect to surety and appeal bonds, performance bonds and other similar obligations not to exceed $2,000,000 in the aggregate at any time outstanding;Subordinated Debt; and
(xiij) Indebtedness not included in paragraphs (ia) through or (xib) above above, or not otherwise specifically permitted under this Agreement, which does not exceed at any time, in the aggregate, $15,000,000;
(xiii) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, Two Million Dollars (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced$2,000,000), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,000.
Appears in 1 contract
Samples: Loan and Security Agreement (Eagle Supply Group Inc)
Total Indebtedness. Create, incur, assume, or suffer to exist, or permit any Subsidiary of its Subsidiaries any Borrower to create, incur or suffer to exist, any Indebtedness, except:
(i) Obligations owing to Agent or any Lender under this Agreement or any of the other Loan Documents;; 33
(ii) Indebtedness evidenced by the Subordinated Bonds and the other Subordinated Bond Documents (each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6, subject to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for in the Subordinated Bonds;
(iii) Indebtedness evidenced by the Secured Bonds and the other Secured Bond Documents, each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6 (subject to clause (xiii) below);
(iv) Indebtedness, including without limitation Subordinated Debt and intercompany indebtednessDebt, existing as of on the date of this Agreement and listed on Exhibit 8.2.3;
(viii) Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Line;
(viiv) contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(viiv) guaranties Guaranties of any Indebtedness permitted under this hereunder;
(vi) Indebtedness in respect of intercompany advances permitted by Section 8.2.2(iv);
(vii) obligations to pay Rentals permitted by subsection 8.2.38.2.18;
(viii) Indebtedness in respect of Intercompany Loansoutstanding pursuant to the Term Loan Documents;
(ix) unsecured Derivative Obligations IRB Indebtedness;
(x) Existing Mortgage Indebtedness;
(xi) Money Borrowed (either as an operating loan or a real estate mortgage loan) in a principal amount not to exceed Seven Hundred Fifty Thousand Dollars ($750,000) invested by Midwesco’s Danish Subsidiaries and guaranteed by Midwesco and/or MFRI;
(xii) Indebtedness incurred in connection with the Lebanon Refinancing;
(xiii) to the extent not included above, trade payables, accruals and accounts payable in the ordinary course of business (in respect of each case to the Loans hereunder;extent not overdue) not for Money Borrowed; and
(x) [intentionally omitted];
(xi) Indebtedness incurred in the ordinary course of business with respect to surety and appeal bonds, performance bonds and other similar obligations not to exceed $2,000,000 in the aggregate at any time outstanding;
(xiixiv) Indebtedness not included in paragraphs (i) through (xixiii) above which does not exceed at any time, in the aggregate, $15,000,000;
(xiii) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, One Million Dollars (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced$1,000,000), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,000.
Appears in 1 contract
Total Indebtedness. Create, incur, assume, or suffer to exist, ------------------ or permit any Subsidiary of its Subsidiaries Borrower, if any, to create, incur or suffer to exist, any Indebtedness, except:
(i) Obligations owing to Agent or any Lender under this Agreement or any of the other Loan DocumentsObligations;
(ii) Indebtedness evidenced by the Subordinated Bonds and the other Subordinated Bond Documents of any Subsidiary of Borrower, if any, to Borrower (each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6, subject to clause (xiii) below), so long as such Indebtedness remains subordinated except to the Obligations pursuant extent eliminated in consolidation) or to the subordination provisions provided for in the Subordinated Bondsanother Subsidiary of Borrower;
(iii) Indebtedness evidenced accounts payable to trade creditors and current operating expenses (other than for Money Borrowed) which on average are not aged more than 90 days from billing date or more than 30 days from the due date, in each case incurred in the ordinary course of Borrower's business and paid within such time period, unless the same are being contested in good faith; and Borrower or such Subsidiary shall have set aside such reserves, if any, with respect thereto as are required by the Secured Bonds GAAP and the deemed adequate by Borrower or such Subsidiary and its independent accountants; provided, however, that not more than 20% in dollar value of all accounts -------- ------- payable and current operating expenses (other Secured Bond Documents, each as in effect as than for Money Borrowed) of the Borrowers and their Subsidiaries may be aged more than 90 days from billing date hereof or as modified in compliance with subsection 8.2.6 (subject to clause (xiii) below)more than 30 days from due date;
(iv) Indebtedness, including without limitation Subordinated Debt and intercompany indebtedness, existing as of the date of this Agreement and listed on Exhibit 8.2.3Obligations to pay rent permitted by subsection 8.2.13;
(v) Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Line;
(vi) contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(vii) guaranties of any Indebtedness permitted under this subsection 8.2.3;
(viii) Indebtedness in respect of Intercompany Loans;
(ix) unsecured Derivative Obligations incurred in the ordinary course of business in respect of the Loans hereunder;
(x) [intentionally omitted];
(xi) Indebtedness incurred in the ordinary course of business with respect to surety and appeal bonds, performance bonds and other similar obligations not to exceed $2,000,000 in the aggregate at any time outstanding;
(xii) Indebtedness not included in paragraphs (i) through (xivi) above which does not exceed at any time, in the aggregate, the sum of $15,000,000500,000 with respect to Restoration and $125,000 with respect to Michael's;
(xiiiviii) subject contingent liabilities with respect to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, Cash Earn-Out payments and accrued interest retentions in respect ofof SBA loans of Xxxxxxx Xxxxxxxxxx;
(ix) contingent liabilities arising from Restoration's unsecured guaranty, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction which guaranty shall not prohibit refinancing exceed the amount of $750,000, of certain obligations of Michaels owing to Hardwoods, Inc.
(x) Indebtedness from having paid in full on the Closing Date, provided that any related liens or security interests are also terminated (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial arrangements acceptable to Agent and Lenders as the subordination terms associated with for such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced termination are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgmentmade) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,000Closing Date.
Appears in 1 contract
Samples: Loan and Security Agreement (Restoration Hardware Inc)
Total Indebtedness. Create, incur, assume, or suffer to exist, or permit any of its Subsidiaries to create, incur or suffer to exist, any Indebtedness, except:
(i) Obligations owing to Agent or any Lender under this Agreement or any of the other Loan DocumentsLender;
(ii) Indebtedness evidenced by Subordinated Debt existing on the Subordinated Bonds date of this Agreement (including, without limitation, the Chesapeake Debt and the other Subordinated Bond Documents (each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6, subject to clause (xiii) belowEnergy Spectrum Debt), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for in the Subordinated Bonds;
(iii) Indebtedness evidenced by the Secured Bonds between Bayard and the other Secured Bond Documents, each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6 (subject to clause (xiii) below)Trend;
(iv) Indebtednessaccounts payable to trade creditors and current operating expenses (other than for Money Borrowed) which are not aged more than thirty (30) days from the due date, including without limitation Subordinated Debt in each case incurred in the ordinary course of business and intercompany indebtednesspaid within such time period, existing as of unless the date of this Agreement and listed on Exhibit 8.2.3same are being Properly Contested;
(v) Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of make lease payments permitted by Section 8.2.13;
(xvi) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Line;
(vivii) contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(vii) guaranties of any Indebtedness permitted under this subsection 8.2.3;
(viii) Indebtedness in respect of Intercompany Loansliabilities for taxes not yet due and payable;
(ix) unsecured Derivative Obligations liabilities under performance and bid bonds incurred by Borrower in the ordinary course of their business in respect up to an aggregate amount of the Loans hereunder$1,000,000 at any time;
(x) [intentionally omitted]Indebtedness existing on the date hereof and described on Exhibit N hereto (including, without limitation, but without duplication of the indebtedness described above, the CIT Debt and the CIT Sale/Leaseback);
(xi) Indebtedness incurred in the ordinary course of business with respect by Non-consolidated Subsidiaries that is non-recourse to surety and appeal bonds, performance bonds and other similar obligations not to exceed $2,000,000 in the aggregate at any time outstanding;either Borrower; and
(xii) Indebtedness not included in paragraphs (i) through (xi) above which does not exceed at any time, in the aggregate, $15,000,000;
(xiii) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,000100,000.
Appears in 1 contract
Samples: Loan and Security Agreement (Bayard Drilling Technologies Inc)
Total Indebtedness. Create, incur, assume, issue, ------------------ or suffer to exist, or permit any of its Subsidiaries Subsidiary to create, incur incur, assume, issue, or suffer to exist, any IndebtednessIndebtedness or Disqualified Stock unless the Fixed Charge Coverage Ratio for Falcon's most recently ended period of four full fiscal quarters for which financial statements have been delivered in accordance with subsection 8.1.3 preceding the date on which such additional Indebtedness is incurred or Disqualified Stock is issued would have been at least 2.5 to 1.0 determined on a pro forma basis (including a pro forma --- ----- --- ----- application of the net proceeds therefrom) as if the additional Indebtedness had been incurred or Disqualified Stock had been issued at the beginning of such four-quarter period. Notwithstanding the foregoing, except:the Borrowers may create, incur, assume or suffer to exist, or permit any Subsidiary to create, incur, or suffer to exist (without duplication):
(i) Obligations owing to Agent or any Lender under this Agreement or any of the other Loan Documents;
(ii) Indebtedness evidenced by under the Subordinated Bonds and the other Subordinated Bond Documents (each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6, subject to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for in the Subordinated BondsTranche B Loan Documents;
(iii) Indebtedness evidenced by the Secured Bonds and the other Secured Bond Documents, each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6 (subject to clause (xiii) below);
(iv) Indebtedness, including without limitation Subordinated Debt and intercompany indebtedness, existing as of on the date of this Agreement and listed on Exhibit 8.2.38.2.3 and any renewals, ------------- extensions, refinancings or replacements thereof, but only if (a) the principal amount of such new Indebtedness does not exceed the principal amount of the existing Indebtedness at the time of such transaction, and (b) such new Indebtedness does not contain terms materially more restrictive to Borrowers and their Subsidiaries than those contained in the existing Indebtedness;
(iv) the Subordinated Note Debt and the Convertible Subordinated Debt;
(v) Capitalized Lease Obligations Subordinated Debt (other than the Subordinated Note Debt and the Convertible Subordinated Debt) so long as the aggregate principal amount of such Subordinated Debt does not exceed $5,000,000 at any time;
(vi) Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized and Permitted Capital Lease Obligations or Permitted Purchase Money Indebtedness)Obligations, in each case less the an aggregate principal amount not in excess of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Line$3,000,000;
(vivii) intentionally omitted;
(viii) contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(viiix) guaranties of any Indebtedness permitted under this subsection 8.2.3; provided that in the case of -------- ---- any Subordinated Debt such guaranties are subordinated to the Obligations (including any guaranty thereof) on terms satisfactory to the Majority Lenders;
(viiix) Indebtedness in respect of Intercompany Loansintercompany loans permitted under subsections 8.2.2(v), (vi) and (vii);
(ixxi) unsecured Derivative Obligations obligations to pay Rentals permitted by subsection 8.2.19;
(xii) Past Due Payables existing on the Closing Date as set forth on the Payables Aging Schedule, the aggregate amount of which shall not exceed $7,000,000 as at July 31, 2005, or $5,000,000 as at the last day of the fiscal year ending on or about October 31, 2005;
(xiii) trade payables, accruals and accounts payable, in each case, in each case incurred after the Closing Date in the ordinary course of business and not for Money Borrowed) to the extent such payables are not past the due date set forth on the original invoices therefor, unless being contested in respect of the Loans hereunder;
good faith by appropriate proceedings being diligently conducted and for which adequate reserves have been provided in accordance with GAAP; provided, that Borrowers and their Subsidiaries -------- may permit to exist payables that would not otherwise qualify as Indebtedness permitted under this clause (xxiii) [intentionally omitted];
(xi) Indebtedness incurred in the ordinary course of business with respect to surety and appeal bonds, performance bonds and other similar obligations an aggregate amount not to exceed $2,000,000 in the aggregate at any time outstanding;
(xii) Indebtedness not included in paragraphs (i) through (xi) above which does not exceed 100,000 at any time, in the aggregate, $15,000,000;
(xiii) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (aother than trade payables, accruals and accounts payable permitted under clauses (xii) average Availability and (as determined by Agent in its reasonable credit judgmentxiii)) for the thirty (30) day period ending on the date of any such incurrence Foreign Subsidiary in an aggregate amount for all of Indebtedness (giving effect the Foreign Subsidiaries not to such incurrence of Indebtedness and the consummation of exceed $7,500,000 at any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,000time outstanding.
Appears in 1 contract
Samples: Loan and Security Agreement (Falcon Products Inc /De/)
Total Indebtedness. Create, incur, assume, or suffer to exist, or permit any of its Subsidiaries to create, incur or suffer to exist, any Indebtedness, except:
(i) Obligations owing to Administrative Agent or any Lender under this Agreement or any of the other Loan Documents;
(ii) Indebtedness evidenced by the Subordinated Bonds and the other Subordinated Bond Documents (each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6, subject to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for in the Subordinated Bonds;
(iii) Indebtedness evidenced by the Secured Bonds and the other Secured Bond Documents, each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6 (subject to clause (xiii) below);
(iv) Indebtedness, including without limitation Subordinated Debt and intercompany indebtedness, existing as of on the date of this Agreement and listed on Exhibit 8.2.3;
(viii) Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Line;
(viiv) contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(viiv) guaranties of any Indebtedness permitted hereunder;
(vi) Indebtedness in respect of intercompany loans permitted under this subsection 8.2.38.2.2(v);
(vii) obligations to pay Rentals permitted by subsection 8.2.17;
(viii) Indebtedness to the extent not included above, trade payables, accruals and accounts payable in respect the ordinary course of Intercompany Loansbusiness (in each case to the extent not overdue) not for Money Borrowed;
(ix) unsecured the Second Lien Debt, and any Replacement Debt in respect thereof, but only to the extent permitted by subsection 8.2.6;
(x) Indebtedness arising under performance and surety bonds in the ordinary course of business;
(xi) Indebtedness incurred to finance the unpaid portion of annual insurance premiums payable by Borrowers and their Subsidiaries in the ordinary course of business, provided, that the aggregate principal amount of such Indebtedness does not exceed at any time, $2,500,000;
(xii) Derivative Obligations and, to the extent constituting Indebtedness, other Product Obligations, in each case incurred in the ordinary course of business in respect of the Loans hereunder;and not for speculative purposes; and
(x) [intentionally omitted];
(xi) Indebtedness incurred in the ordinary course of business with respect to surety and appeal bonds, performance bonds and other similar obligations not to exceed $2,000,000 in the aggregate at any time outstanding;
(xiixiii) Indebtedness not included in paragraphs clauses (i) through (xixii) above which does not exceed at any time, time $7,500,000 in the aggregate, $15,000,000;
(xiii) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum aggregate principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,000amount.
Appears in 1 contract
Samples: Loan and Security Agreement (Nes Rentals Holdings Inc)
Total Indebtedness. Create, incur, assume, or suffer to exist, or permit any of its Subsidiaries Subsidiary to create, incur incur, or suffer to exist, any Indebtedness, except:
: (i) Obligations owing to Agent or Collateral Agent, any Lender under this Agreement or and/or any Affiliate of the other Loan Documents;
a Lender; (ii) Indebtedness evidenced by the Subordinated Bonds and the other Subordinated Bond Documents (each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6, subject to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for in the Subordinated Bonds;
Debt; (iii) Indebtedness evidenced by the Secured Bonds and the other Secured Bond Documents, each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6 (subject any Subsidiary of MMI to clause (xiii) below);
MMI; (iv) Indebtednessunsecured accounts payable to trade creditors which are incurred in the ordinary course of business, including without limitation Subordinated Debt and intercompany indebtednesswhich are paid in the ordinary course of business, existing or if not paid in the ordinary course of business, where the same are actively being contested in good faith and by appropriate and lawful proceedings and Borrower shall have set aside such reserves, if any, with respect thereto as of the date of this Agreement are required by GAAP and listed on Exhibit 8.2.3;
deemed adequate by Borrower and its independent public accountants; (v) obligations to pay Rentals permitted by Section 9.2(V); (vi) Purchase Money Indebtedness and Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the exceeding an aggregate of $17,000,000 at any time outstanding the greater of time; (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Line;
(vivii) contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(vii) guaranties of any Indebtedness permitted under this subsection 8.2.3;
; (viii) Indebtedness existing on the Closing Date and described on Exhibit R attached hereto; (ix) Refinancing Indebtedness; (x) Indebtedness in respect of Intercompany Loans;
(ix) unsecured Derivative Obligations incurred taxes, assessments, governmental charges, claims for labor, materials or supplies, and liabilities under any Plan, to the extent that payment thereof is not yet due or which are being contested in the ordinary course of business good faith by Borrower, and for which adequate reserves are maintained in respect of the Loans hereunder;
(x) [intentionally omitted];
accordance with GAAP; (xi) Indebtedness incurred letters of credit issued by Persons other than Collateral Agent or any Lender, in the ordinary course each case under this Agreement, if such letters of business with respect to credit have been approved by Majority Lenders; (xii) surety and appeal bonds; (xiii) guarantees of any permitted Indebtedness and of any permitted employee Indebtedness; (xiv) Indebtedness incurred by Borrower to finance insurance premiums which does not exceed at any time, performance bonds and other similar obligations not to exceed $2,000,000 in the aggregate at any time outstanding;
aggregate, $3,000,000; (xiixv) Indebtedness payable pursuant to Section 2.2 of the SRP Stock Purchase Agreement; and (xvi) Indebtedness not included in paragraphs clauses (i) through (xixv) above which does not exceed at any time, in the aggregate, $15,000,000;
(xiii) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,0001,000,000."
Appears in 1 contract
Total Indebtedness. Create, incur, assume, or suffer to exist, or permit any Subsidiary of its Subsidiaries Borrower to create, incur or suffer to exist, any Indebtedness, except:
(ia) Obligations owing to Agent or any Lender under this Agreement or any of and the other Loan DocumentsLenders;
(iib) Indebtedness of any Foreign Subsidiary owed to Borrower, provided that any such Indebtedness and shall not exceed $110,000,000 as of November 30, 1999, and any other such Indebtedness owing to Borrower (a) must be evidenced by intercompany notes that are pledged to Agent, for the Subordinated Bonds benefit of the Lenders, and (b) shall not exceed the other Subordinated Bond Documents sum of (each as in effect 1) the actual amount of Indebtedness of Foreign Subsidiaries owed to Borrower outstanding as of November 30, 1999 (not to exceed $110,000,000 plus an additional $3,000,000 plus (2) for periods subsequent to July 1, 2000, the date then applicable Average Gross Availability Amount, as defined in, and determined under, the Working Capital Loan Agreement. Borrower shall provide Agent with a schedule setting forth the proposed Average Gross Availability Amount within five (5) Business Days after the end of each month and at least five (5) Business Days prior to making any loan or advance that would constitute Indebtedness under clause (b)(2) hereof in order to obtain Agent's and each Lender's consent to any such loan or advance, which consent shall be granted in Agent's and each Lender's sole discretion. In the event that, as modified a result of a decrease in such Average Gross Availability Amount, the outstanding Indebtedness addressed by this clause (b) exceeds the amount permitted by this clause (b), it shall not constitute a Default hereunder so long as Borrower is in compliance with subsection 8.2.6, subject to this clause (xiiib) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for in the Subordinated Bondswithin 60 days thereafter;
(iiic) Indebtedness evidenced by the Secured Bonds and the other Secured Bond Documentsof Borrower owed to any Subsidiary or of any Subsidiary owed to another Subsidiary or to a Foreign Affiliate, each as in effect as of the date hereof including any renewal, extension or as modified in compliance with subsection 8.2.6 (subject to clause (xiii) below)refinancing thereof;
(ivd) Indebtedness, including without limitation Subordinated Debt and intercompany indebtedness, existing as of the date of this Agreement and listed on Exhibit 8.2.3Obligations to pay Rentals permitted by Subsection 7.2.13;
(ve) Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Line;
(vif) contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(viig) guaranties Indebtedness arising under the Indenture or the Working Capital Loan Agreement; and
(h) Indebtedness of Foreign Subsidiaries (other than Indebtedness described in Subsection 7.2.3(b) or (c) above) incurred, renewed, extended or refinanced when no Default exists or would result therefrom, provided that the aggregate amount of all such Indebtedness outstanding at any Indebtedness permitted under this subsection 8.2.3time shall not exceed the greater of (a) fifty percent (50%) of the aggregate book value of the accounts receivable (net of bad debt reserves) of such Foreign Subsidiaries or (b) $10,000,000;
(viiii) Indebtedness in respect of Intercompany LoansForeign Subsidiaries to Fleet or an Affiliate thereof which has been Guaranteed by Borrower, including any renewal, extension or refinancing thereof;
(ixj) unsecured Derivative Indebtedness existing on the date hereof and described on Exhibit T hereto;
(k) Indebtedness not to exceed $4,000,000 owing to Proctor & Gamble Company arising from the licensing to Boxxxxxx of xxxxxxn patents owned by Proctor & Gamble Company;
(l) Capitalized Lease Obligations incurred xx xxxx as xxxx leases do not cover any Property other than the Property acquired in connection therewith, provided that the aggregate amount of all such Indebtedness outstanding at any time shall not exceed $1,500,000;
(m) Hedging Obligations entered into in the ordinary course of business in respect order to hedge currency, commodity or interest rate risks, and not for purposes of the Loans hereunderspeculation;
(xn) [intentionally omitted]Permitted Borrower Refinancing Debt;
(xio) Guarantees of Indebtedness by Borrower or any Subsidiary, provided that the Indebtedness subject to such Guarantee, if incurred in the ordinary course of business with respect to surety and appeal bondsdirectly rather than by a Guarantee by Borrower or such Subsidiary, performance bonds and other similar obligations not to exceed $2,000,000 in the aggregate at any time outstanding;would otherwise be permitted under this Subsection 7.2.3; and
(xiip) Indebtedness not included in paragraphs (ia) through (xio) above which does not exceed at any time, in the aggregate, $15,000,000;
(xiii) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,0001,000,000.00.
Appears in 1 contract
Samples: Term Loan Agreement (Drypers Corp)
Total Indebtedness. Create, incur, assume, or suffer to exist, or permit any of its Subsidiaries to create, incur or suffer to exist, any Indebtedness, except:
(i) Obligations owing to Agent or any Lender under this Agreement or any of the other Loan Documents;
(ii) Indebtedness evidenced by the Subordinated Bonds and the other Subordinated Bond Documents (each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6, subject to clause (xiii) belowhereof), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for included in Article XI of the Subordinated BondsBond Indenture (as amended in accordance with the terms of such Article XI);
(iii) Indebtedness evidenced by the Secured Bonds and the other Secured Bond Documents, Documents (each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6 (subject to clause (xiii) below);
(iv) Indebtedness, including without limitation Subordinated Debt and intercompany indebtedness, existing as of the date of this Agreement and listed on Exhibit 8.2.3;
(v) Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not to exceed $7,500,000 in the aggregate at any time outstanding the greater of (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Lineoutstanding;
(vi) contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(vii) guaranties of any Indebtedness permitted under this subsection 8.2.3;
(viii) Indebtedness in respect of Intercompany Loans;
(ix) unsecured Derivative Obligations incurred in the ordinary course of business in respect of the Loans hereunder;
(x) [intentionally omitted]unsecured Subordinated Debt not otherwise permitted under this subsection 8.2.3 which does not exceed at any time, in the aggregate, $5,000,000;
(xi) Indebtedness incurred in the ordinary course of business with respect to surety and appeal bonds, performance bonds and other similar obligations not to exceed $2,000,000 in the aggregate at any time outstanding;
(xii) Indebtedness not included in paragraphs (i) through (xi) above which does not exceed at any time, in the aggregate, $15,000,000;2,000,000; and
(xiii) subject Subject to the limitations set forth in subsection 8.2.6, refinancings refinancing of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced); provided, that a then current market rate of interest that is more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced shall also be permitted if, on a pro forma basis after giving effect to such refinancing Indebtedness and the interest rate applicable thereto, Borrowers would be in compliance with the Fixed Charge Coverage Ratio as of the last day of the most recently completed fiscal quarter)and (e) if such Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced; provided, that a then current market rate of interest that is more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced shall also be permitted if, on a pro forma basis after giving effect to such refinancing Indebtedness and the interest rate applicable thereto, Borrowers would be in compliance with the Fixed Charge Coverage Ratio as of the last day of the most recently completed fiscal quarter)and (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,000.
Appears in 1 contract
Total Indebtedness. Create, incur, assume, or suffer to exist, or permit any Subsidiary of its Subsidiaries Borrower to create, incur or suffer to exist, any Indebtedness, except:
(i) Obligations owing to Agent or any Lender under this Agreement or any of the other Loan Documentsand Lenders;
(ii) Indebtedness evidenced by the Subordinated Bonds and the other Subordinated Bond Documents (each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6, subject any Subsidiary of Borrower to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for in the Subordinated BondsBorrower;
(iii) Indebtedness evidenced accounts payable to trade creditors and current operating expenses (other than for Money Borrowed) which are not aged more than 120 days from billing date or more than 60 days from the due date, in each case incurred in the ordinary course of business and paid within such time period, unless the same are being actively contested in good faith and by the Secured Bonds appropriate and the other Secured Bond Documentslawful proceedings; and Borrower or such Subsidiary shall have set aside such reserves, each if any, with respect thereto as in effect as of the date hereof are required by GAAP and deemed adequate by Borrower or as modified in compliance with subsection 8.2.6 (subject to clause (xiii) below)such Subsidiary and its independent accountants;
(iv) Indebtedness, including without limitation Subordinated Debt and intercompany indebtedness, existing as of the date of this Agreement and listed on Exhibit 8.2.3Obligations to pay Rentals permitted by Section 8.2.13;
(v) Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Line;
(vi) contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(vii) guaranties Capital Lease Obligations to the extent permitted by Section 8.2.8 in an aggregate principal amount of any Indebtedness permitted under this subsection 8.2.3not more than $750,000;
(viii) Indebtedness in respect of Intercompany Loansto deferred taxes;
(ix) unsecured Derivative Obligations incurred Indebtedness relating to compensation owed to Borrower’s employees for services rendered in the ordinary course of business in respect of the Loans hereunderbusiness;
(x) [intentionally omitted]all unfunded pension and other employee benefit plan obligations and liabilities but only to the extent they are permitted to remain unfunded under applicable law;
(xi) Indebtedness incurred insurance reserves created in the ordinary course of business with respect to surety and appeal bonds, performance bonds and other similar obligations not to exceed $2,000,000 in the aggregate at any time outstanding;business; and
(xii) Indebtedness not included in paragraphs (i) through (xixii) above which does not exceed at any time, in the aggregate, $15,000,000;
(xiii) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,000500,000.
Appears in 1 contract
Samples: Loan and Security Agreement (Houston Wire & Cable CO)
Total Indebtedness. Create, incur, assume, or suffer to exist, or permit any Subsidiary of its Subsidiaries any Borrower to create, incur or suffer to exist, any Indebtedness, except:
(i) Obligations owing to Agent or any Lender under this Agreement or any of the other Loan Documents;
(ii) Indebtedness evidenced by the Subordinated Bonds and the other Subordinated Bond Documents (each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6, subject to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for in the Subordinated Bonds;
(iii) Indebtedness evidenced by the Secured Bonds and the other Secured Bond Documents, each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6 (subject to clause (xiii) below);
(iv) Indebtedness, including without limitation Subordinated Debt and intercompany indebtednessDebt, existing as of on the date of this Agreement and listed on Exhibit 8.2.3;
(viii) Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Line;
(viiv) contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(viiv) guaranties Guaranties of any Indebtedness permitted under this hereunder;
(vi) Indebtedness in respect of intercompany advances permitted by Section 8.2.2(iv);
(vii) obligations to pay Rentals permitted by subsection 8.2.38.2.18;
(viii) Indebtedness in respect of Intercompany LoansIntentionally Omitted;
(ix) unsecured Derivative Obligations IRB Indebtedness;
(x) Existing Mortgage Indebtedness;
(xi) Intentionally Omitted;
(xii) Indebtedness incurred pursuant to the Perma-Pipe Equipment Loan;
(xiii) to the extent not included above, trade payables, accruals and accounts payable in the ordinary course of business (in respect of each case to the Loans hereunderextent not overdue) not for Money Borrowed;
(x) [intentionally omitted];
(xixiv) Indebtedness incurred in connection with loans on the ordinary course cash surrender value of business key-man life insurance policies so long as the principal amount of such Indebtedness does not exceed $2,000,000, the per annum interest rate payable with respect to surety such Indebtedness does not exceed 4.25% and appeal bondssuch Indebtedness does not require any principal amortization on or prior to December 31, performance bonds and other similar obligations not to exceed $2,000,000 in the aggregate at any time outstanding2013;
(xiixv) Money Borrowed incurred by foreign Subsidiaries of Borrowers and other Indebtedness not included in paragraphs (i) through (xixiv) above which does not exceed at any time, in the aggregate, the sum of Eleven Million Dollars ($15,000,00011,000,000);
(xiiixvi) subject Indebtedness in respect to deferred taxes;
(xvii) Indebtedness relating to compensation owed to Borrower's employees for services rendered in the ordinary course of business;
(xviii) all unfunded pension and other employee benefit plan obligations and liabilities but only to the limitations set forth extent they are permitted to remain unfunded under applicable law; and
(xix) Indebtedness not included in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses paragraphs (i) through (xiixviii) of this subsection 8.2.3above does not exceed at any time, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the aggregate, the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,000500,000.
Appears in 1 contract
Total Indebtedness. Create, incur, assume, or suffer to exist, or permit any of its Subsidiaries to create, incur or suffer to exist, any Indebtedness, except:
(i) Obligations owing to Agent or any Lender under this Agreement or any of the other Loan Documents;
(ii) Indebtedness evidenced by the Subordinated Bonds and the other Subordinated Bond Documents (each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6, subject to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for in the Subordinated Bonds;
(iii) Indebtedness evidenced by the Secured Bonds and the other Secured Bond Documents, each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6 (subject to clause (xiii) below);
(iv) Indebtedness, including without limitation Subordinated Debt and intercompany indebtedness, existing as of the date of this Agreement and listed on Exhibit 8.2.3;
(viii) Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Line;
(viiv) Subordinated Debt;
(v) contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(viivi) guaranties of any Indebtedness permitted under this subsection 8.2.3;
(viiivii) Indebtedness in respect of Intercompany Loans;
(viii) obligations to pay Rentals permitted by subsection 8.2.18;
(ix) unsecured Derivative Obligations incurred entered into in order to hedge interest rate or currency risk and not for speculative purposes;
(x) to the extent not included above, trade payables, accruals and accounts payable in the ordinary course of business (in respect of each case to the Loans hereunder;
(xextent not overdue) [intentionally omitted];not for Money Borrowed
(xi) to the extent the Investment Securities may be deemed to constitute Indebtedness, unsecured Indebtedness incurred in evidenced by the ordinary course of business with respect to surety and appeal bonds, performance bonds and other similar obligations not to exceed $2,000,000 in the aggregate at any time outstanding;Investment Securities; and
(xii) unsecured Indebtedness not included in paragraphs (i) through (xix) above which does not exceed at any time, in the aggregate, $15,000,000;
(xiii) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,00020,000,000.
Appears in 1 contract
Samples: Loan and Security Agreement (Wabash National Corp /De)
Total Indebtedness. Create, incur, assume, or suffer to exist, or permit any Subsidiary of its Subsidiaries Borrower to create, incur or suffer to exist, any Indebtedness, except:
(i) Obligations owing to Agent or any Lender under this Agreement or any of the other Loan DocumentsLender;
(ii) Indebtedness evidenced by Subordinated Debt outstanding in respect to the Subordinated Bonds and the other Subordinated Bond Documents (each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6, subject to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for in the Subordinated BondsDebt Documents;
(iii) Indebtedness evidenced by the Secured Bonds and the other Secured Bond Documents, each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6 (subject any Subsidiary of Borrower to clause (xiii) below)such Borrower;
(iv) Indebtednessaccounts payable to trade creditors and current operating expenses (other than for Money Borrowed) which are not aged more than 30 days from the due date, including without limitation Subordinated Debt in each case incurred in the ordinary course of business and intercompany indebtednesspaid within such time period, existing unless the same are being actively contested in good faith and by appropriate and lawful proceedings; and Borrower or such Subsidiary shall have set aside such reserves, if any, with respect thereto as of the date of this Agreement are required by GAAP and listed on Exhibit 8.2.3deemed adequate by Borrower or such Subsidiary and its independent accountants;
(v) Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of pay Rentals permitted by subsection 8.2.13;
(xvi) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold Line;
(vivii) contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(vii) guaranties of any Indebtedness permitted under this subsection 8.2.3;
(viii) Indebtedness in respect of Intercompany Loansoutstanding under the Hastings Documents;
(ix) unsecured Derivative Obligations incurred in Indebtedness outstanding under the ordinary course of business in respect of the Loans hereunderPromissory Note and Stock Pledge Agreement;
(x) [intentionally omitted]Indebtedness under Capitalized Leases listed on Exhibit K;
(xi) Indebtedness incurred in connection with the ordinary course acquisition of business with respect to surety and appeal bondsapproximately 30 acres of vacant land in Xxxxxxx, performance bonds and other similar obligations Oregon, in a principal amount not to exceed One Hundred Three Thousand Dollars ($2,000,000 in the aggregate at any time outstanding103,000);
(xii) Indebtedness outstanding under the Xxxxxxx Note; and
(xiii) Indebtedness not included in paragraphs (i) through (xixii) above which does not exceed at any time, in the aggregate, $15,000,000;
(xiii) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,000250,000.
Appears in 1 contract
Samples: Loan and Security Agreement (Eagle Pacific Industries Inc/Mn)
Total Indebtedness. Create, incur, assume, or suffer to exist, or permit any Subsidiary of its Subsidiaries Borrowers to create, incur or suffer to exist, any Indebtedness, except:
(i) Obligations owing to Agent or any Lender under this Agreement or any of the other Loan DocumentsAgreement;
(ii) Indebtedness evidenced by the Subordinated Bonds and the other Subordinated Bond Documents (each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6, subject to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for in the Subordinated Bonds;
(iii) Indebtedness evidenced by the Secured Bonds and the other Secured Bond Documents, each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6 (subject to clause (xiii) below);
(iv) Indebtedness, including without limitation Subordinated Debt and intercompany indebtedness, existing as of on the date of this Agreement and listed on Exhibit 8.2.3;
(viii) Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), ;
(iv) Indebtedness with respect to Capital Leases aggregating not in each case less the amount excess of $10,000,000 at any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause one time;
(v) Contingent liabilities, including but not limited to liabilities in respect of gift certificates, merchandise returns, special order to finance any part of the purchase price or cost of construction or improvement of the New Mold Line;
(vi) deposits and deferred revenue, and other contingent liabilities arising out of endorsements endorsement of checks and or other negotiable instruments for deposit or collection in the ordinary course of business;
(viivi) guaranties of any Indebtedness permitted under this subsection 8.2.3;
Accounts payable to trade creditors, accruals for current operating expenses (viiiother than for Money Borrowed, and accruals including and which include but are not limited to sales tax payable amounts and payroll, occupancy, interest and income tax expense accruals), which are not aged more than thirty (30) Indebtedness days from the due date, in respect of Intercompany Loans;
(ix) unsecured Derivative Obligations each case incurred in the ordinary course of business and paid within such time period, unless the same are being actively contested in good faith and by appropriate and lawful proceedings; and Borrowers or such Subsidiary shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrowers or such Subsidiary and its independent accountants;
(vii) Indebtedness in respect of the Loans hereunderintercompany loans permitted under subsection 8.2.2(iv);
(xviii) [intentionally omitted];
Accrued service fees, deferred lease incentives, deferred rent and reserves related to sales returns, sales and use taxes, litigation, escheat, and insurance (xi) Indebtedness incurred including self-insurance), in each case established in the ordinary course of business with respect to surety and appeal bonds, performance bonds and other similar obligations not to exceed $2,000,000 in the aggregate at any time outstandingbusiness;
(xiiix) Indebtedness not included in paragraphs (i) through (xiviii) above which does not exceed at any time, in the aggregate, $15,000,000;
(xiii) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement$10,000,000; and
(xivx) Indebtedness incurred where in respect of money borrowed, in an aggregate amount not to exceed $100,000,000 (ainclusive of the amounts permitted under clause (ix) average Availability (as determined hereof) at any one time outstanding, and otherwise on terms and subject to documentation acceptable to the Agent and, if secured by Agent in its reasonable credit judgment) for a Lien permitted under Section 8.2.5 hereof, to the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,000Lenders.
Appears in 1 contract
Samples: Loan and Security Agreement (Restoration Hardware Inc)
Total Indebtedness. Create, incur, assume, or suffer to exist, ------------------ or permit any of its Subsidiaries Subsidiary to create, incur or suffer to exist, any Indebtedness, except:
(i) Obligations owing to Agent or any Lender under this Agreement or any of the other Loan Documents;
(ii) Indebtedness evidenced by the Subordinated Bonds and the other Subordinated Bond Documents (each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6, subject to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for in the Subordinated Bonds;
(iii) Indebtedness evidenced by the Secured Bonds and the other Secured Bond Documents, each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6 (subject to clause (xiii) below);
(iv) Indebtedness, including without limitation Subordinated Debt and intercompany indebtedness, existing as of on the date of this Agreement and listed on Exhibit 8.2.38.2.3 and any renewals, extensions, refinancings or ------------- replacements thereof, but only if (a) the principal amount of such new Indebtedness does not exceed the principal amount of the existing Indebtedness at the time of such transaction, and (b) such new Indebtedness does not contain terms materially more restrictive to Borrowers and their Subsidiaries than those contained in the existing Indebtedness;
(iii) Subordinated Debt;
(iv) Permitted Purchase Money Indebtedness;
(v) Capitalized Permitted Capital Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), in each case less the amount of any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause (v) in order to finance any part of the purchase price or cost of construction or improvement of the New Mold LineObligations;
(vi) contingent liabilities arising out of endorsements of checks and other negotiable instruments for deposit or collection in the ordinary course of business;
(vii) guaranties of any Indebtedness permitted under this subsection 8.2.3;
(viii) Indebtedness in respect of Intercompany Loansintercompany loans permitted under subsections 8.2.2(v), (vi) and (vii);
(ix) unsecured Derivative Obligations incurred obligations to pay Rentals permitted by subsection 8.2.19;
(x) to the extent not included above, trade payables, accruals and accounts payable in the ordinary course of business (in respect of each case to the Loans hereunder;
(xextent not overdue or being contested in good faith by appropriate proceedings being diligently conducted) [intentionally omitted]not for Money Borrowed;
(xi) Indebtedness incurred (other than trade payables, accruals and accounts payable permitted under clause (x)) of any Foreign Subsidiary in an aggregate amount for all of the ordinary course of business with respect to surety and appeal bonds, performance bonds and other similar obligations Foreign Subsidiaries not to exceed $2,000,000 in the aggregate 7,500,000 at any time outstanding;; and
(xii) Indebtedness not included in paragraphs (i) through (xi) above above, which does not exceed at any time, in the aggregate, $15,000,000;
(xiii) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,000500,000.
Appears in 1 contract
Samples: Loan and Security Agreement (Falcon Products Inc /De/)
Total Indebtedness. Create, incur, assume, or suffer to exist, or permit any Subsidiary of its Subsidiaries Borrowers to create, incur or suffer to exist, any Indebtedness, except:
(i) Obligations owing to Agent or any Lender under this Agreement or any of the other Loan DocumentsAgreement;
(ii) Indebtedness evidenced by the Subordinated Bonds and the other Subordinated Bond Documents (each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6, subject to clause (xiii) below), so long as such Indebtedness remains subordinated to the Obligations pursuant to the subordination provisions provided for in the Subordinated Bonds;
(iii) Indebtedness evidenced by the Secured Bonds and the other Secured Bond Documents, each as in effect as of the date hereof or as modified in compliance with subsection 8.2.6 (subject to clause (xiii) below);
(iv) Indebtedness, including without limitation Subordinated Debt and intercompany indebtedness, existing as of on the date of this Agreement and listed on Exhibit 8.2.3;
(viii) Capitalized Lease Obligations and Permitted Purchase Money Indebtedness not to exceed in the aggregate at any time outstanding the greater of (x) $10,000,000 or (y) the amount that is equal to 3% of Tangible Assets (measured at the time of the incurrence of any such Capitalized Lease Obligations or Permitted Purchase Money Indebtedness), ;
(iv) Indebtedness with respect to Capital Leases aggregating not in each case less the amount excess of $5,000,000 at any refinancing Capitalized Lease Obligations and Permitted Purchase Money Indebtedness outstanding pursuant to clause (xiii) below; provided, that no Indebtedness may be incurred pursuant to this clause one time;
(v) Contingent liabilities, including but not limited to liabilities in respect of gift certificates, merchandise returns, special order to finance any part of the purchase price or cost of construction or improvement of the New Mold Line;
(vi) deposits and deferred revenue, and other contingent liabilities arising out of endorsements endorsement of checks and or other negotiable instruments for deposit or collection in the ordinary course of business;
(viivi) guaranties of any Indebtedness permitted under this subsection 8.2.3;
Accounts payable to trade creditors, accruals for current operating expenses (viiiother than for Money Borrowed, and accruals including and which include but are not limited to sales tax payable amounts and payroll, occupancy, interest and income tax expense accruals), which are not aged more than thirty (30) Indebtedness days from the due date, in respect of Intercompany Loans;
(ix) unsecured Derivative Obligations each case incurred in the ordinary course of business and paid within such time period, unless the same are being actively contested in good faith and by appropriate and lawful proceedings; and Borrowers or such Subsidiary shall have set aside such reserves, if any, with respect thereto as are required by GAAP and deemed adequate by Borrowers or such Subsidiary and its independent accountants;
(vii) Indebtedness in respect of the Loans hereunderintercompany loans permitted under subsection 8.2.2 (iv);
(xviii) [intentionally omitted];
Accrued service fees, deferred lease incentives, deferred rent and reserves related to sales returns, sales and use taxes, litigation, escheat, and insurance (xi) Indebtedness incurred including self-insurance), in each case established in the ordinary course of business with respect to surety and appeal bonds, performance bonds and other similar obligations not to exceed $2,000,000 in the aggregate at any time outstandingbusiness;
(xiiix) Indebtedness not included in paragraphs (i) through (xiviii) above which does not exceed at any time, in the aggregate, $15,000,000;
(xiii) subject to the limitations set forth in subsection 8.2.6, refinancings of any Indebtedness permitted under the foregoing clauses (i) through (xii) of this subsection 8.2.3, so long as (a) such refinancing Indebtedness has a maximum principal amount not in excess of the sum of the principal amount of, and accrued interest in respect of, the Indebtedness being refinanced at the time of refinancing, plus reasonable direct expenses of such refinancing, (b) the refinancing Indebtedness is secured only by Liens on assets, if any, that secured the Indebtedness being refinanced, (c) the average weighted average life to maturity of the refinancing Indebtedness is not shorter than that of the Indebtedness being refinanced, (d) the refinancing Indebtedness has terms that are not more adverse in any material respect to Agent, Lenders or the applicable Borrower or Subsidiary of a Borrower than the Indebtedness being refinanced (it being understood that the foregoing restriction shall not prohibit refinancing Indebtedness from having (1) a term that is longer, or that ends later, than the term of the Indebtedness being refinanced or (2) a then current market rate of interest that is not more than 200 basis points higher than the interest rate applicable to the Indebtedness being refinanced), (e) if such Indebtedness being refinanced is Subordinated Debt, any such refinancing Indebtedness includes subordination terms that are at least as beneficial to Agent and Lenders as the subordination terms associated with such Subordinated Debt being refinanced, (f) if any of the Liens securing such Indebtedness being refinanced are subordinated to the Liens securing the Obligations, the Liens securing any such refinancing Indebtedness are subordinated to the Liens securing the Obligations pursuant to terms that are at least as beneficial to Agent and Lenders as the terms associated with the Liens securing such Indebtedness being refinanced and (g) if such Indebtedness being refinanced is the Indebtedness evidenced by the Secured Bonds, any such refinancing Indebtedness shall be subject to an intercreditor agreement that is at least as beneficial to Agent and Lenders as the terms of the Secured Bond Intercreditor Agreement; and
(xiv) Indebtedness incurred where (a) average Availability (as determined by Agent in its reasonable credit judgment) for the thirty (30) day period ending on the date of any such incurrence of Indebtedness (giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith for each day in such thirty (30) day period) is not less than $25,000,000 and (b) actual Availability (as determined by Agent in its reasonable credit judgment) on the date of any such incurrence of Indebtedness, after giving effect to such incurrence of Indebtedness and the consummation of any transactions occurring in connection therewith, is not less than $25,000,0003,000,000.
Appears in 1 contract
Samples: Loan and Security Agreement (Restoration Hardware Inc)
