Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”): (a) Obligations of the Loan Parties under the Loan Documents; (b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom; (c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset; (d) the SBA PPP Loan; (e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes; (f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims; (g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP; (h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business; (i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent; (j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties; (k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations; (l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and (m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.
Appears in 9 contracts
Sources: Senior Secured Credit Agreement (Bright Mountain Media, Inc.), Senior Secured Credit Agreement (Bright Mountain Media, Inc.), Senior Secured Credit Agreement (Bright Mountain Media, Inc.)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations Indebtedness existing on the date hereof and reflected in the most recent balance sheet of the Loan Parties Borrower referred to in Section 3.05 or incurred after the date hereof under credit facilities in effect on the date hereof, and any extensions, renewals, exchanges or replacements of such Indebtedness to the extent (i) the principal amount of such Indebtedness is not increased (except by an amount equal to unpaid accrued interest and premium thereon plus other reasonable fees and expenses incurred in connection with such extension, renewals or replacement), (ii) neither the final maturity nor the weighted average life to maturity of such Indebtedness is decreased, (iii) such Indebtedness, if subordinated to the Obligations, remains so subordinated on terms no less favorable to the Lender and (iv) the original obligors in respect of such Indebtedness remain the only obligors thereon;
(b) Indebtedness created hereunder and under the other Loan Documents;
(bc) Surviving intercompany Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals the Borrower and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable Subsidiaries to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness extent permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such assetSection 6.04(c);
(d) Indebtedness (including Capital Lease Obligations) of the SBA PPP LoanBorrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets (other than aircraft and aircraft-related equipment purchased by International Lease Finance Corporation and its subsidiaries), and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; provided that (i) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement and (ii) the aggregate principal amount of Indebtedness permitted by this Section 6.01(d) shall not exceed $25,000,000 at any time outstanding;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) other Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance assumed in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of Borrower and its Subsidiaries to finance the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion conduct of such convertible notes into Equity Interests of Parent) to business in the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Dateordinary course; and
(mf) other unsecured Indebtedness of the Borrower or the Subsidiaries; provided that (i) the 2021 Preferred Stock on terms reasonably acceptable proceeds thereof are applied to prepay the Loans as required by Section 2.10(d) and (ii) such Indebtedness shall not mature, and there shall be no scheduled principal payments due under such Indebtedness, prior to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under date that is 30 months after the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative AgentClosing Date.
Appears in 5 contracts
Sources: Credit Agreement, Credit Agreement, Credit Agreement
Indebtedness. CreateNeither the Borrower nor any of its Subsidiaries shall directly or indirectly create, incur, assume or suffer otherwise become or remain directly or indirectly liable with respect to exist any Indebtedness, except the followingIndebtedness which, without duplication (which constitutes “Permitted Indebtedness”):
(a) Obligations when aggregated with Total Adjusted Outstanding Indebtedness of the Loan Parties under Borrower as of the Loan Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b)time of incurrence, but creation or assumption thereof, would not any extensions, renewals or replacements of such Indebtedness except exceed (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness sixty percent (60%) of Capitalization Value as the same are in effect on of the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extendedincurrence, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, however, that, in connection with a portfolio acquisition, for the six (6) consecutive quarters after such acquisition, Total Adjusted Outstanding Indebtedness permitted under the immediately preceding clause may exceed sixty percent (i60%) of Capitalization Value, but in no event exceed sixty-five percent (65%) of Capitalization Value, or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases Secured Indebtedness of the Consolidated Businesses and the Borrower’s proportionate share (determined in accordance with GAAP) of Secured Indebtedness of its Minority Holdings, fifty percent (50%) of the Capitalization Value. In addition, neither the Borrower nor any of its Subsidiaries shall incur, directly or purchase indirectly, Indebtedness for borrowed money Indebtednessfrom the General Partner, unless such Indebtedness is unsecured and expressly subordinated to the payment of the Obligations. For purposes of Section 10.1 only, (i) Total Adjusted Outstanding Indebtedness shall be secured adjusted by deducting therefrom an amount equal to the asset subject lesser of (x) Indebtedness that by its terms is scheduled to such additional Capital Leases mature on or acquired asset in connection with before the incurrence date that is 24 months from the date of such calculation (“Maturing Indebtedness, as the case may be”), and (y) in the case of purchase money IndebtednessUnrestricted Cash, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness Capitalization Value shall be evidenced adjusted by promissory notes deducting therefrom Cash and all such notes shall be subject to a first priority Lien pursuant to Cash Equivalents and adding back the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such caseamount, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided thatif any, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured by which Unrestricted Cash exceeds Maturing Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.0310.1(ii) only, all Obligations outstanding under (i) Secured Indebtedness shall be adjusted by deducting therefrom an amount equal to the Loan Documents will be deemed lesser of (x) Secured Indebtedness that by its terms is scheduled to have been incurred in reliance only mature on or before the exception in clause (a) date that is 24 months from the date of calculation of this Section 7.03. Notwithstanding anything to covenant (“Maturing Secured Indebtedness”), and (y) Unrestricted Cash, and (ii) Capitalization Value shall be adjusted by deducting therefrom Cash and Cash Equivalents and adding back the contrary hereinamount, no Loan Party shall have outstandingif any, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentby which Unrestricted Cash exceeds Maturing Secured Indebtedness.
Appears in 5 contracts
Sources: Credit Agreement (Simon Property Group L P /De/), Credit Agreement (Simon Property Group L P /De/), Credit Agreement (Simon Property Group L P /De/)
Indebtedness. Create, issue, incur, assume assume, become liable in respect of or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations Indebtedness of the any Loan Parties under the Party pursuant to any Loan DocumentsDocument;
(b) Surviving Indebtedness listed on Schedule 7.03(bof the Borrower to any Subsidiary or of any Subsidiary to the Borrower or any other Subsidiary that in either case shall not have been transferred or pledged to any third party to the extent that such Indebtedness corresponds to any Investment permitted by Section 6.8(g), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (ih) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromi);
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in of any Person that shall have become a Subsidiary after the aggregate at any time outstandingdate hereof; provided that any (i) such Indebtedness (x) shall have existed at the time such Person becomes a Subsidiary and shall not have been created in the case contemplation of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with such Person becoming a Subsidiary, and any refinancings, refundings, renewals or extensions thereof (without increasing the incurrence principal amount or shortening the maturity thereof) and (ii) the aggregate amount of Indebtedness incurred under this clause (c) shall not exceed $15,000,000 at the time of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such assetincurrence;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks Guarantee Obligations incurred in the ordinary course of business by the Borrower or any of its Subsidiaries of obligations of any Guarantor or any Broker-Dealer Subsidiary;
(e) Indebtedness outstanding on the date hereof and not for speculative purposeslisted on Schedule 6.2(e) and any refinancings, refundings, renewals or extensions thereof (without increasing the principal amount or shortening the maturity thereof);
(f) Indebtedness (including, without limitation, Capital Lease Obligations) secured by Liens permitted by Section 6.3(g) incurred by to finance the acquisition, construction or improvement of any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts fixed or similar instruments issued or created in the ordinary course of businesscapital assets, including Capital Lease Obligations, and any Indebtedness assumed or incurred in respect connection with the acquisition of workers compensation claimsany such assets or secured by a Lien on any such assets prior to the acquisition thereof, healthand extensions, disability renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; provided that (i) such Indebtedness is incurred prior to or other employee benefits within 180 days after such acquisition or propertythe completion of such construction or improvement, casualty or liability insurance or self-insurance or other and (ii) the aggregate amount of Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsincurred under this clause (f) shall not exceed $5,000,000 at the time of such incurrence;
(g) Indebtedness incurred by Broker-Dealer Subsidiaries under customary terms in the ordinary course of business, provided that if any Loan Party such Indebtedness is unsecured and has a term of longer than one month, the relevant Broker-Dealer Subsidiary holds, or will have the right to hold pursuant to pending securities transactions and in respect of accounts payable to trade creditors for goods accordance with applicable laws and services and current operating liabilities (not regulations, unencumbered marketable securities sufficient, at the result time of the borrowing of money) incurred securities transaction which gave rise to any such Indebtedness, to refinance such Indebtedness in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPon a secured basis using such securities as collateral;
(h) Guarantee Obligations of the Borrower and its Subsidiaries in respect of Indebtedness consisting or liabilities of guarantees resulting from endorsement the Borrower and its Subsidiaries so long as the incurrence or existence of negotiable instruments for collection by any such Indebtedness or liabilities is permitted under this Agreement; provided that a Group Member that is not a Loan Party may not incur such Guarantee Obligations in respect of Indebtedness of a Loan Party, and a Loan Party may not incur such Guarantee Obligations in respect of Indebtedness of a Group Member that is not a Loan Party; provided further that any Guarantee Obligations of Subordinated Indebtedness shall also be subordinated;
(i) [Reserved];
(j) cash management obligations and Indebtedness in respect of netting services, overdraft protections and similar arrangements in each case in connection with cash management and deposit accounts in the ordinary course of business;
(ik) Indebtedness of the Bank (i) any to the Board or to the Federal Home Loan Party owing to any other Loan Party and Bank Board, (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to constituting federal funds purchased and securities sold in Repo Transactions undertaken in the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; providedordinary course of business, that, or (iii) otherwise incurred in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right ordinary course of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agentits banking business;
(jl) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance overnight borrowing in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Dateconsistent with past practice; and
(m) additional Indebtedness of the 2021 Preferred Stock on terms reasonably acceptable to Borrower or any of its Subsidiaries in an aggregate principal amount, which taken together with the Administrative Agent in its sole discretion. For purposes principal amount of determining compliance with this Section 7.03, all Obligations other debt outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in this clause (am) at the time of this Section 7.03. Notwithstanding anything to incurrence thereof (for the contrary hereinBorrower and all Subsidiaries), no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee not exceed at the time of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentincurrence thereof $15,000,000.
Appears in 3 contracts
Sources: Credit Agreement (SWS Group Inc), Funding Agreement (Hilltop Holdings Inc.), Credit Agreement (SWS Group Inc)
Indebtedness. CreateSuch Borrower will not contract, create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(ai) Obligations of Indebtedness incurred pursuant to this Agreement and the Loan Parties under the Loan other Credit Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extendedaccrued expenses, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services deferred taxes and current operating liabilities (not the result of the borrowing of money) trade accounts payable, in each case incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(iiii) Indebtedness not to exceed $1,000,000 in aggregate principal amount at any one time outstanding in favor of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to such Borrower's Custodian consisting of extensions of credit from the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance Custodian in the ordinary course of business of the Loan Partiesbusiness;
(kiv) Indebtedness in respect of judgments or awards that have been in force for less than the convertible notes; provided thatapplicable period for taking an appeal so long as judgments or awards do not constitute an Event of Default and so long as execution is not levied thereunder or in respect of which such Borrower (A) shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review or (B) shall have obtained a performance bond, all such which performance bond shall, except to the extent permitted by Section 8.01(vi), be unsecured, and Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Dateperformance bond; and
(mv) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent Indebtedness (other than Indebtedness for borrowed money) arising in its sole discretion. For purposes of determining compliance connection with this Section 7.03, all Obligations outstanding any other transaction permissible under the Loan Documents will be deemed to have been incurred in reliance only on Investment Company Act and such Borrower's investment objectives and fundamental investment restrictions, including, but not limited to, Reverse Repurchase Agreements, mortgage dollar rolls, delayed delivery transactions (provided that the exception in clause assets with respect thereto are segregated), when-issued securities (aprovided that the assets with respect thereto are segregated) of this Section 7.03and loans from other Borrowers or any other Borrower. Notwithstanding anything to the contrary hereincontained in this Agreement, in no Loan Party event shall have outstandingany Borrower contract, create create, incur, assume or incur suffer to exist any Indebtedness owing to any Senior Securities other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to than the Loans and other Obligations in a manner and on terms satisfactory pursuant to the Administrative Agentthis Agreement.
Appears in 3 contracts
Sources: Credit Agreement (Galaxy Fund /De/), Credit Agreement (Galaxy Fund Ii), Credit Agreement (Galaxy Vip Fund)
Indebtedness. Create(a) The Company will not, and will not permit any Subsidiary to, create, incur, assume or suffer permit to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(ai) Obligations of the Loan Parties Indebtedness created under the Loan Documents;
(bii) Surviving Indebtedness listed existing on the date hereof and set forth in Schedule 7.03(b)6.01, but not any and extensions, renewals or and replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if that do not increase the terms outstanding principal amount thereof;
(iii) Indebtedness incurred by the Subsidiaries in connection with broker-dealer and conditions thereof are not less favorable related underwriting and financing activities;
(iv) Indebtedness incurred by the Subsidiaries in connection with ordinary course investment activity;
(v) Indebtedness of any Subsidiary assumed in connection with the acquisition of any assets or secured by a Lien on any assets prior to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extendedacquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not increase the average life to maturity thereof is greater than or equal to outstanding principal amount thereof; provided that the aggregate principal amount of Indebtedness permitted by this clause (v) shall not exceed $25,000,000 at any time outstanding;
(vi) Indebtedness of any Person that becomes a Subsidiary after the date hereof;
(vii) Indebtedness in respect of interest rate and currency Swap Contracts entered into in the ordinary course of business for non-speculative hedging purposes and not as financing;
(viii) other Indebtedness of Subsidiaries in an aggregate principal amount not exceeding $25,000,000 at any time outstanding; and
(ix) other unsecured Indebtedness, provided that each of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above following conditions shall not have been satisfied:
(A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any no Default or Event of Default has shall have occurred and is be continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (xB) in the case of additional Capital Leases any such Indebtedness of the Company which is a credit facility (whether revolving or purchase money Indebtednessterm) evidenced by a loan agreement, credit agreement or similar document or promissory note, the terms and conditions of the documents to be entered into in connection therewith shall not contain restrictions or conditions (including, without limitation, representations and warranties, covenants or events of default) that are materially more restrictive than the corresponding restrictions and conditions, or pricing that is higher for the remaining term of this Agreement than the pricing, set forth in the Loan Documents, unless the Company concurrently notifies the Administrative Agent thereof and incorporates herein such more restrictive terms or higher pricing; and
(C) at the time of the execution of the documents pursuant to which such Indebtedness is to be incurred, the Company shall have delivered to the Administrative Agent, an officer’s certificate signed by a Financial Officer certifying that each of the conditions required to be satisfied in order to incur such Indebtedness in accordance with this Section 6.01(a)(ix)shall have been satisfied and the Company shall be secured by in pro forma compliance with the asset subject financial covenant set forth in Section 6.06 through the Maturity Date after giving pro forma effect to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in incurrence. In the case of purchase money Indebtednessclause (ix)(B) above, if the Administrative Agent at the time so elects by notice to the Company and the Lenders, the incorporation of more restrictive terms or higher pricing shall constitute not less than 75% be deemed to occur automatically without any further action or the execution of any additional document by any of the aggregate consideration paid with respect parties to this Agreement. If the Administrative Agent does not elect to effect such asset;an automatic incorporation, the Administrative Agent shall promptly tender to the Company for execution by it an amendment (executed by the Administrative Agent) incorporating such more restrictive terms or higher pricing and shall promptly deliver a copy of such amendment to the Lenders.
(db) No Credit Party (other than the SBA PPP Loan;
(eCompany) will create, incur, assume or permit to exist any Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
except (i) Indebtedness of (i) any created under the Loan Party owing to any other Loan Party and Documents, (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to exceed $50,000,000 in the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; providedaggregate for all Credit Parties (other than the Company), that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(jiii) unsecured Indebtedness (with a term of no more than 60 days incurred by a Credit Party other than the Company as bridge financing for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance equity investments in the ordinary course private equity fund of business of which such Credit Party is the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided thatgeneral partner, all if such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of bridge financing is guaranteed by such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in private equity fund and/or its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentlimited partners.
Appears in 3 contracts
Sources: Credit Agreement (KKR & Co. L.P.), Credit Agreement (KKR & Co. L.P.), Credit Agreement (KKR & Co. L.P.)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):
(a) Obligations of the Loan Parties under the Loan Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Initial Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.
Appears in 3 contracts
Sources: Senior Secured Credit Agreement (Bright Mountain Media, Inc.), Senior Secured Credit Agreement (Bright Mountain Media, Inc.), Senior Secured Credit Agreement (Bright Mountain Media, Inc.)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of Indebtedness existing on the Loan Parties under the Loan Documents;
(b) Surviving Indebtedness listed on date hereof and set forth in Schedule 7.03(b), but not 6.01 and any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in to the agreements evidencing any extent the principal amount of such Indebtedness as is not increased, neither the same are in effect on final maturity nor the date weighted average life to maturity of this Agreement and (ii) refinancings and extensions of any such Indebtedness is decreased, such Indebtedness, if subordinated to the Obligations, remains so subordinated on terms and conditions thereof are not no less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extendedLenders, and the average life to maturity thereof is greater than or equal to that obligors in respect of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted at the time of such refinancing remain the only obligors thereon;
(b) Indebtedness created hereunder and under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromother Loan Documents;
(c) intercompany Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect Borrower and the Subsidiaries to such assetthe extent permitted by Section 6.04(c);
(d) Indebtedness of the SBA PPP LoanBorrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; PROVIDED that (i) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement and (ii) the aggregate principal amount of Indebtedness permitted by this Section 6.01(d), when combined with the aggregate principal amount of all Capital Lease Obligations incurred pursuant to Section 6.01(e) shall not exceed $20,000,000 at any time outstanding;
(e) Capital Lease Obligations in an aggregate principal amount, when combined with the aggregate principal amount of all Indebtedness incurred pursuant to Section 6.01(d), not in respect excess of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes$20,000,000 at any time outstanding;
(f) Indebtedness incurred by any Loan Party in under performance bonds or with respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers to workers' compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness in each case incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(g) Melody Permitted Indebtedness;
(h) Indebtedness incurred by Foreign Subsidiaries for working capital in an aggregate principal amount not exceeding $25,000,000 at any time outstanding, up to $10,000,000 of which may be Guaranteed on an unsecured basis by the Borrower and/or one or more Domestic Subsidiaries;
(i) Indebtedness of any Subsidiary that exists at the time such person becomes a Subsidiary and that was not incurred in contemplation of or in connection with the acquisition by the Borrower or a Subsidiary of such person, in an aggregate principal amount not to exceed $10,000,000 at any time outstanding;
(j) Guarantees by the Borrower or any Subsidiary of any Indebtedness permitted under this Section 6.01; provided, however, that (i) any Loan Party owing to any other Loan Party no Indebtedness of Holdings may be Guaranteed under this paragraph (j) and (ii) Indebtedness owed of Foreign Subsidiaries may be Guaranteed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party the Borrower and the Domestic Subsidiaries only to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, provided for in each case paragraph (Ah) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Partiesabove;
(k) Indebtedness in respect of the convertible notesAdditional L/C Facility in an aggregate amount outstanding at any time not to exceed $10,000,000; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;and
(l) other unsecured Indebtedness, provided that such Indebtedness matures of the Borrower or the Subsidiaries in an aggregate principal amount not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have exceeding $30,000,000 at any time outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.
Appears in 3 contracts
Sources: Credit Agreement (Koll Donald M), Credit Agreement (Cb Richard Ellis Services Inc), Credit Agreement (Cb Richard Ellis Services Inc)
Indebtedness. Create, incur, assume or suffer to exist exist, or prepay, redeem or repurchase, any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of the Loan Parties Indebtedness under the Loan Documents;
(b) Surviving Indebtedness outstanding on the date hereof and listed on Schedule 7.03(b)7.02 and any refinancings, but not any extensionsrefundings, renewals or replacements extensions thereof; provided that the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and the direct or any contingent obligor with respect thereto is not changed, as a result of or in connection with such refinancing, refunding, renewal or extension; and, still further, that the terms relating to principal amount, amortization, maturity, collateral (iif any) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness subordination, standstill and related terms (if any), and other material terms taken as the same are in effect on the date of this Agreement and (ii) refinancings and extensions a whole, of any such Indebtedness if the terms refinancing, refunding, renewing or extending Indebtedness, and conditions thereof of any agreement entered into and of any instrument issued in connection therewith, are not no less favorable in any material respect to the obligor thereon Loan Parties or to the Lenders than the Indebtedness being refinanced terms of any agreement or extended, and the average life to maturity thereof is greater than or equal to that of instrument governing the Indebtedness being refinanced or extended; providedrefinanced, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extendedrefunded, renewed or refinancedextended and the interest rate applicable to any such refinancing, (B) refunding, renewing or extending Indebtedness does not exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromthen applicable market interest rate;
(c) Indebtedness with in respect to Capital Leases of Capitalized Leases, Synthetic Lease Obligations and purchase money Indebtedness obligations for fixed or capital assets within the limitations set forth in an amount not to exceed $1,000,000 in Section 7.01(i); provided, however, that the aggregate principal amount of all Indebtedness of the Loan Parties incurred in reliance on this clause (c) and clause (o) below at any time outstandingoutstanding shall not exceed $25,000,000; provided that any such Indebtedness (x) in [***] Confidential treatment has been requested for the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection bracketed portions. The confidential redacted portion has been omitted and filed separately with the incurrence of such Indebtedness, as the case may be, Securities and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;Exchange Commission.
(d) Unsecured Indebtedness of a Subsidiary of any Borrower owed to such Borrower or a Subsidiary of such Borrower, which Indebtedness shall (i) to the SBA PPP Loanextent required by the Administrative Agent, be evidenced by promissory notes which shall be pledged to the Collateral Agent as Collateral for the Secured Obligations in accordance with the terms of the Security Agreement, (ii) be on terms (including subordination terms) reasonably acceptable to the Administrative Agent and (iii) be otherwise permitted under the provisions of Section 7.03 (“Intercompany Debt”);
(e) Indebtedness Guarantees of any Borrower or any Subsidiary thereof in respect of Indebtedness otherwise permitted hereunder of such Borrower or any Guarantor;
(f) obligations (contingent or otherwise) existing or arising under any Swap Contracts designed to hedge against interest rates, foreign exchange rates Contract; provided that (i) such obligations are (or commodities pricing risks incurred were) entered into by such Person in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party the purpose of directly mitigating risks associated with fluctuations in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts interest rates or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party foreign exchange rates and (ii) Indebtedness owed by a Subsidiary that is such Swap Contract does not a Guarantor Subsidiary contain any provision exonerating the non-defaulting party from its obligation to any Loan Party make payments on outstanding transactions to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agentdefaulting party;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.
Appears in 3 contracts
Sources: Credit Agreement (Sunrun Inc.), Credit Agreement (Sunrun Inc.), Credit Agreement (Sunrun Inc.)
Indebtedness. Create(a) Irish Holdco will not, and will not permit any Restricted Subsidiary to, incur, assume directly or suffer to exist indirectly, any Indebtedness, except and Irish Holdco will not issue any Disqualified Equity Interests and will not permit any of its Restricted Subsidiaries to issue any shares of Preferred Equity (other than the followingissuance of Preferred Equity by any Restricted Subsidiary to Irish Holdco or another Restricted Subsidiary that is a Loan Party and, without duplication to the extent such issuance constitutes a Permitted Investment hereunder or is otherwise permitted under Section 6.04, the issuance of Preferred Equity by any Restricted Subsidiary that is not a Loan Party to Irish Holdco or another Restricted Subsidiary); provided, however, Irish Holdco will be entitled to incur Indebtedness or issue Disqualified Equity Interests and any Restricted Subsidiary will be entitled to incur Indebtedness or issue Preferred Equity, so long as (which constitutes “Permitted Indebtedness”):
i) no Default or Event of Default shall have occurred and be continuing or would exist immediately after giving effect (aincluding giving effect on a pro forma basis) Obligations to such incurrence or issuance, (ii) such Indebtedness is not scheduled to mature prior to the date that is 91 days after the Latest Maturity Date and (ii) after giving effect to such incurrence or issuance on a pro forma basis for the most recently ended Test Period prior to such incurrence or issuance (or, in the event the proceeds thereof are to be used to finance a Limited Condition Acquisition, prior to the date the definitive agreements for such Limited Condition Acquisition are entered into), the Fixed Charge Coverage Ratio would be at least 2.00 to 1.00 (but excluding, for purposes of such calculation, the proceeds of such Incremental Loans or any other Indebtedness incurred on such date in the calculation of the Loan Parties under Unrestricted Cash); provided, further, that any such Indebtedness of non-Guarantor Subsidiaries, when combined with all Indebtedness incurred pursuant to Section 6.01(b)(xi) hereof, shall not exceed, in the Loan Documentsaggregate, $60,000,000 at any time outstanding;
(b) Surviving Indebtedness listed on Schedule 7.03(bNotwithstanding Section 6.01(a), but not Irish Holdco and its Restricted Subsidiaries will be entitled to incur any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that all of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such following Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;collectively “Permitted Debt”):
(i) Indebtedness of The Secured Obligations (iincluding any Incremental Loans) and any Loan Party owing to any other Loan Party and Credit Agreement Refinancing Indebtedness;
(ii) Indebtedness owed to and held by Irish Holdco or a Restricted Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is as permitted as an Investment pursuant to under Section 7.026.04; provided, that, in each case that (Ai) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right any subsequent issuance or transfer of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement any Equity Interest that results in any such case, is reasonably satisfactory to the Collateral Agent;
Indebtedness being held by a Person other than Irish Holdco or a Restricted Subsidiary and (jii) unsecured any subsequent transfer of such Indebtedness (other than for borrowed moneyto Irish Holdco or a Restricted Subsidiary) that may shall be deemed deemed, in each case, to exist pursuant to any bona fide warranty or contractual service obligations or performance in constitute the ordinary course incurrence of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of by the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided obligor thereon that such Indebtedness matures was not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with permitted by this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.ii));
Appears in 3 contracts
Sources: Credit Agreement (Horizon Therapeutics Public LTD Co), Credit Agreement (Horizon Therapeutics Public LTD Co), Credit Agreement (Horizon Therapeutics Public LTD Co)
Indebtedness. CreateNone of the Borrower or any of the Subsidiaries will create, incur, assume or suffer permit to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):other than:
(a) Obligations Indebtedness in respect of the Loan Parties Obligations and Indebtedness arising under the Loan DocumentsRoyalty Agreement;
(b) Surviving until the Closing Date, Indebtedness listed on that is to be repaid in full as further identified in Schedule 7.03(b8.2(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases existing as of the Closing Date which is identified in Schedule 8.2(c), and purchase money Refinancing of such Indebtedness in an a principal amount not to exceed $1,000,000 in excess of that which is outstanding on the aggregate at any time outstanding; provided that any Closing Date (as such Indebtedness (x) in amount has been reduced following the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such assetClosing Date);
(d) the SBA PPP Loan;
(e) unsecured Indebtedness in respect of Swap Contracts designed to hedge against interest ratesperformance, foreign exchange rates surety or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred appeal bonds provided in the ordinary course of business in accordance with customary terms an aggregate amount at any time outstanding not to exceed $500,000;
(e) Purchase Money Indebtedness and paid within Capitalized Lease Liabilities, and Refinancings thereof, in a principal amount not to exceed $8,000,000 in the specified aggregate outstanding at any time, unless contested and, without duplication, Contingent Liabilities incurred in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPconnection therewith;
(f) Permitted Subordinated Indebtedness;
(g) Indebtedness of any Subsidiary or the Borrower owing to the Borrower or any Subsidiary;
(h) other Indebtedness consisting of guarantees resulting from endorsement the Borrower and the Subsidiaries in an aggregate amount at any time outstanding not to exceed $100,000;
(i) Indebtedness incurred as a result of endorsing negotiable instruments for collection by any Loan Party received in the ordinary course of business;
(ij) Indebtedness of (i) any Loan Party owing permitted to any other Loan Party exist, and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party subject to the extent such Indebtedness is permitted as an Investment pursuant limitations, with respect to Section 7.02Permitted Joint Ventures; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;and
(k) Indebtedness in respect of reimbursement obligations under letters of credit posted in the convertible notes; ordinary course of business to secure the Borrower’s or a Subsidiary’s real property lease obligations, not to exceed $1,000,000 in the aggregate. provided that, all such no Indebtedness in respect of the convertible notes otherwise permitted by clauses (c), (e), (f), (g), (h) or (j) shall be unsecured assumed, created or otherwise incurred if a Default has occurred and subordinated in right of payment to the payment in full (other than any payment as a is then continuing or would result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agenttherefrom.
Appears in 2 contracts
Sources: Credit Agreement (Natera, Inc.), Credit Agreement (Natera, Inc.)
Indebtedness. CreateThe Loan Parties will not permit any Consolidated Party to contract, create, incur, assume or suffer permit to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of Indebtedness arising under this Agreement and the Loan Parties under the other Loan Documents;
(b) Surviving Indebtedness listed on of the Borrowers and their Subsidiaries set forth in Schedule 7.03(b)7.01 (and renewals, but not any extensions, renewals or replacements refinancings and extensions thereof; provided that (x) the amount of such Indebtedness except is not increased at the time of such renewal, refinancing or extension, (iy) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof of such renewal, refinancing or extension are materially not less favorable to such Borrowers or Subsidiary, taken as a whole and (z) the obligor thereon maturity date of such renewal, refinancing or to extension shall be a date after the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromMaturity Date);
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness (including obligations in an amount respect of Capital Leases or Synthetic Lease Obligations) hereafter incurred by the Borrowers or any of their Subsidiaries to finance the purchase of fixed assets provided that (i) the total of all such Indebtedness for all such Persons taken together along with all Indebtedness incurred pursuant to Section 7.01(j) shall not to exceed $1,000,000 in the aggregate 150,000,000 at any one time outstanding; provided that any (ii) such Indebtedness when incurred shall not exceed the purchase price of the asset(s) financed; and (xiii) in the case of additional Capital Leases or purchase money Indebtedness, no such Indebtedness shall be secured by refinanced for a principal amount in excess of the asset subject to such additional Capital Leases or acquired asset in connection with principal balance outstanding thereon at the incurrence time of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such assetrefinancing;
(d) obligations (contingent or otherwise) of the SBA PPP Loan;
Borrowers or any Subsidiary existing or arising under any Swap Contracts, provided that such obligations are (eor were) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with purchases, sales, liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for speculative purposespurposes of speculation or taking a “market view”;
(e) intercompany Indebtedness and Guarantees permitted under Section 7.06;
(f) in addition to the Indebtedness otherwise permitted by this Section 7.01, other Indebtedness incurred by the Borrowers or any Loan Party in respect of letters their Subsidiaries after the Restatement Date, provided that (i) such Indebtedness shall be unsecured and (ii) the Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to the incurrence of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in such Indebtedness and to the ordinary course concurrent retirement of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or any other Indebtedness of any Consolidated Party, the Loan Parties would be in compliance with respect to reimbursement-type obligations regarding workers compensation claimsthe financial covenants set forth in Section 6.10(a) and (b);
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP[reserved];
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business[reserved];
(i) Indebtedness of pursuant to the Revolving Credit Agreement in an aggregate outstanding principal amount not to exceed $300,000,000 (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party or, to the extent the aggregate commitments thereunder are increased pursuant to Section 2.14 of the Revolving Credit Agreement, such increased amount, not to exceed a maximum of $800,000,000), including and renewals, refinancings and extensions thereof; provided that (x) the amount of such Indebtedness is permitted as an Investment pursuant to Section 7.02not increased at the time of such renewal, refinancing or extension; provided, that, in each case (Ay) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of such renewal, refinancing or extension are materially not less favorable to such Borrowers or Subsidiary, taken as a whole and (z) no additional collateral is pledged by the applicable promissory notes or an intercompany subordination agreement that in any Loan Parties to secure such case, is reasonably satisfactory to the Collateral AgentIndebtedness;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment addition to the payment in full (Indebtedness otherwise permitted by this Section 7.01, other than secured Indebtedness incurred by the Borrowers or any payment as a result of their Subsidiaries after the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured IndebtednessRestatement Date, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(mi) the 2021 Preferred Stock on terms reasonably acceptable Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to the incurrence of such Indebtedness and to the concurrent retirement of any other Indebtedness of any Consolidated Party, the Loan Parties would be in its sole discretion. For purposes of determining compliance with this the financial covenants set forth in Section 7.03, 6.10(a) and (b) and (ii) the aggregate principal amount of all Obligations outstanding under the Loan Documents will be deemed secured Indebtedness taken together along with all Indebtedness pursuant to have been incurred in reliance only on the exception in clause (aSection 7.01(c) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.not exceed $150,000,000; and
Appears in 2 contracts
Sources: Term Loan Agreement (Potlatchdeltic Corp), Term Loan Agreement (Potlatchdeltic Corp)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of the Loan Parties Indebtedness under the Loan Documents;
(b) Surviving Indebtedness outstanding on the date hereof and listed on Schedule 7.03(b)8.03 and any refinancings, but not any extensionsrefundings, renewals or replacements extensions thereof, provided that the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount, subject to subsection (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable below, equal to the obligor thereon a reasonable premium or to the Lenders than the Indebtedness being refinanced or extendedother reasonable amount paid, and the average life to maturity thereof is greater than or fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromexisting commitments unutilized thereunder;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such assetSwap Contracts;
(d) the SBA PPP Loanpurchase money Indebtedness (including capital leases) described in Section 8.01(i) not to exceed an aggregate outstanding principal amount at any time of $250,000,000, excluding those described on Schedule 8.03;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposesReal Estate Financing Facilities;
(f) Indebtedness incurred by any Loan Party in respect obligations arising under the Permitted Trade Receivables Facilities, provided that the amount of letters all accounts receivable owing to the Foreign Subsidiaries that are sold, transferred or assigned shall not exceed the equivalent of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created EUR 800,000,000 in the ordinary course aggregate, based on the prevailing spot rate of business, including exchange for the currencies in respect which such accounts receivable are denominated as of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsthe date of determination;
(g) Indebtedness incurred by any Loan Party of a Person, or in respect of accounts payable assets, acquired pursuant to trade creditors for goods an Acquisition permitted under Section 8.12 and services and current operating liabilities existing at the time of such Acquisition (not including the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified timeKohler Acquisition), unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
provided that (i) such Indebtedness was not incurred in contemplation of (i) any Loan Party owing to any other Loan Party such Acquisition and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than not outstanding for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less more than one hundred eighty (180) days following after the Last Out Maturity date of such Acquisition;
(h) Indebtedness of the Kohler Acquired Business or any of its Subsidiaries existing at the time of consummation of the Kohler Acquisition, provided that (i) such Indebtedness was not incurred in contemplation of such Acquisition and (ii) the aggregate principal amount of Indebtedness permitted pursuant to this clause (h) shall not exceed $105,000,000 at any time outstanding;
(i) Other Indebtedness as long as after giving effect to the incurrence thereof, the Borrower will be in pro forma compliance with Section 8.13(a); provided that (i) the aggregate principal amount of Indebtedness of Subsidiaries that are not Guarantors incurred pursuant to this clause (i) shall not exceed $400,000,000 at any time; provided, further, the calculation of such $400,000,000 limit shall exclude Indebtedness incurred or existing pursuant to cash pooling arrangements of the Borrower and its Subsidiaries existing or entered into in the ordinary course of business consistent with past practices and (ii) for the avoidance of doubt, for any incurrence of debt on or after the Kohler Acquisition Closing Date, such pro forma compliance shall be determined after giving effect to the step-up to the Consolidated Total Leverage Ratio described in Section 8.13(a)(x); and
(mj) Guarantees of the 2021 Preferred Stock on terms reasonably acceptable to Indebtedness of the Administrative Agent in Borrower (other than the Obligations) by any Subsidiary that is a Guarantor hereof or becomes a Guarantor hereof concurrently with its sole discretion. For purposes Guarantee of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any such other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative AgentIndebtedness.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Tech Data Corp), Revolving Credit Agreement (Tech Data Corp)
Indebtedness. CreateThe Company shall not create, incur, assume or assume, suffer to exist or otherwise be or become liable with respect to any Indebtedness, Indebtedness except the followingfollowing (collectively, without duplication (which constitutes “Permitted Indebtedness”):
(a) Obligations Indebtedness incurred in respect of the Loan Parties under the Loan DocumentsInitial Notes;
(b) Surviving Indebtedness listed on Schedule 7.03(b)incurred by the Company under a credit agreement, but revolving loan, note purchase agreement, supplement or similar document with one or more banks or institutional lenders not any extensionsan Affiliate of the Company, renewals or replacements of such Indebtedness except which satisfies the following: (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and at any one time outstanding does not exceed $10,000,000, (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any no Default or Event of Default has occurred and is continuing then exists or would result therefromexist after giving effect to such Indebtedness and (iii) such Indebtedness is secured on a pari passu basis with the Collateral pursuant to the terms of the Collateral Agency Agreement which the lender(s) or an agent on their behalf has acceded to;
(c) unsecured Indebtedness with respect to Capital Leases and purchase money Indebtedness of the Company (other than Intercompany Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $5,000,000;
(d) Purchase Money Indebtedness (including Capital Lease Obligations); provided, that the aggregate principal amount and the capitalized portion of such obligations do not at any one time exceed $10,000,000 in the aggregate at any one time outstanding;
(e) unsecured Indebtedness of the Company in an aggregate outstanding principal amount not to exceed $1,000,000 15,000,000 owing to any Affiliate of the Company so long as such Indebtedness is subordinated in right of payment to the aggregate at Notes in accordance with the Terms of Subordination (“Intercompany Indebtedness”);
(f) Permitted Refinancing Indebtedness to refinance all or any time outstandingportion of any Indebtedness permitted under this Section; provided that the amount of any such Permitted Refinancing Indebtedness shall be deemed outstanding as the same type of Indebtedness being refinanced for purposes of determining the capacity of the Company to create, incur, assume, suffer to exist or otherwise be or become liable with respect to any Indebtedness (xto the extent such capacity is limited hereunder);
(g) any other Indebtedness incurred by the Company which Indebtedness satisfies the Incurrence Conditions;
(h) Indebtedness listed on Schedule 10.5(h); and
(i) Performance Guarantees supporting the Project; provided, that the terms of any such Performance Guarantee shall be generally consistent with past practice of the Company and its Affiliates and in the case of additional Capital Leases or purchase money Indebtedness, no event shall any such Performance Guarantee be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such assetCollateral;
(dj) the SBA PPP LoanIndebtedness under any Permitted Commodity Hedge and Power Sales Agreement or other Swap Agreement entered into in accordance with Section 10.13;
(ek) Indebtedness to the extent constituting Indebtedness, obligations in respect of Swap Contracts designed performance bonds, bid bonds, appeal bonds, surety bonds, completion guarantees, indemnification obligations, obligations to hedge against interest ratespay insurance premiums, foreign exchange rates or commodities pricing risks take-or-pay obligations contained in supply agreements and similar obligations incurred in the ordinary course of business and not in connection with Indebtedness for speculative purposesBorrowed Money;
(fl) Indebtedness incurred by any Loan Party in respect of letters any bankers’ acceptance, letter of credit, bank guarantees, bankers’ acceptances, warehouse receipts receipt or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred facilities entered into in the ordinary course of business and not in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPrespect of Swap Agreements;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(km) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts. To the convertible notes; provided thatextent that the creation, all incurrence or assumption of any Indebtedness could be attributable to more than one subsection of this Section 10.5, the Company may allocate such Indebtedness to any one or more of such subsections and in no event shall the same portion of Indebtedness be deemed to utilize or be attributable to more than one subsection. For the avoidance of doubt, any Indebtedness permitted to be incurred by the Company, as the case may be, under a specific subsection of this Section 10.5 and any Guarantee in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following which is also permitted to be incurred by the Last Out Maturity Date; and
(m) Company, as the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03case may be, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) same subsection of this Section 7.03. Notwithstanding anything to 10.5 shall not count as two separate amounts of Indebtedness for purposes of calculating compliance with the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless limitations set forth in such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentsubsection.
Appears in 2 contracts
Sources: Note Purchase Agreement (REV Renewables, Inc.), Note Purchase Agreement (REV Renewables, Inc.)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of Indebtedness existing on the Loan Parties under the Loan Documents;
(b) Surviving Indebtedness listed on date hereof and set forth in Schedule 7.03(b), but not 6.01 and any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in to the agreements evidencing any extent the principal amount of such Indebtedness as is not increased, neither the same are in effect on final maturity nor the date weighted average life to maturity of this Agreement and (ii) refinancings and extensions of any such Indebtedness is decreased, such Indebtedness, if subordinated to the Obligations, remains so subordinated on terms and conditions thereof are not no less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extendedLenders, and the average life to maturity thereof is greater than or equal to that original obligors in respect of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted remain the only obligors thereon;
(b) Indebtedness created hereunder and under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extendedother Loan Documents, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromincluding Incremental Term Loans;
(c) intercompany Indebtedness with respect of the Borrower and the Subsidiaries to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that extent permitted by Section 6.04(c) so long as any such Indebtedness (x) in owed to a Subsidiary that is not a Subsidiary Guarantor is subordinated to the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject Obligations pursuant to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such assetan Affiliate Subordination Agreement;
(d) Indebtedness of the SBA PPP LoanBorrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; provided that (i) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement and (ii) the aggregate principal amount of Indebtedness permitted by this Section 6.01(d), when combined with the aggregate principal amount of all Capital Lease Obligations incurred pursuant to Section 6.01(e), shall not exceed $5,000,000 at any time outstanding;
(e) Capital Lease Obligations in an aggregate principal amount, when combined with the aggregate principal amount of all Indebtedness incurred pursuant to Section 6.01(d), not in respect excess of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes$5,000,000 at any time outstanding;
(f) Indebtedness incurred by any Loan Party in under performance bonds or with respect of letters of credit, bank guarantees, bankersto workers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness in each case incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(ig) Indebtedness of any Person that becomes a Subsidiary after the date hereof; provided that (i) any Loan Party owing to any other Loan Party such Indebtedness exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary, and (ii) immediately before and after such Person becomes a Subsidiary, no Default or Event of Default shall have occurred and be continuing;
(h) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment in respect of those Hedging Agreements incurred pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes 5.13 or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business and consistent with prudent business practice;
(i) other Indebtedness of the Borrower or the Subsidiaries in an aggregate principal amount not exceeding $5,000,000 at any time outstanding;
(j) Indebtedness to Sponsor incurred solely to refinance the Glickberg Note; provided that such Indebtedness (i) is incurred only by those Loan Parties;Parties that are obligors under the Glickberg Note, (ii) has terms no less favorable to the Borrower and the Subsidiaries than the Glickberg Note and (iii) is subordinated to the Obligations on terms no less favorable to the Lenders than the subordination terms applicable to the Glickberg Note; and
(k) Indebtedness in respect consisting of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only interest paid in-kind on the exception in clause (a) of this Section 7.03. Notwithstanding anything to Glickberg Note at the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to rate set forth therein on the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentdate hereof.
Appears in 2 contracts
Sources: Credit Agreement (Fairway Group Holdings Corp), Credit Agreement (Fairway Group Holdings Corp)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of the Loan Parties Indebtedness under the Loan Documents;
(b) Surviving Indebtedness listed on of the Borrower and its Subsidiaries set forth in Schedule 7.03(b)8.03 (and renewals, but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the thereof on terms and conditions thereof are not materially less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromapplicable debtor(s));
(c) intercompany Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such assetpermitted under Section 8.02;
(d) obligations (contingent or otherwise) of the SBA PPP Loan;
Borrower or any Subsidiary existing or arising under any Swap Contract, provided that (ei) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates such obligations are (or commodities pricing risks incurred were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for speculative purposespurposes of speculation or taking a "market view;" and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) purchase money Indebtedness (including obligations in respect of Capital Leases or Synthetic Lease Obligations) hereafter incurred by the Borrower or any of its Subsidiaries to finance the purchase of fixed assets, and renewals, refinancings and extensions thereof, provided that (i) such Indebtedness when incurred shall not exceed the purchase price of the asset(s) financed; and (ii) no such Indebtedness shall be refinanced for a principal amount in excess of the principal balance outstanding thereon at the time of such refinancing;
(f) unsecured Indebtedness incurred by in addition to the Indebtedness described in clauses (a) through (e) and (g) through (i) of this Section in an aggregate principal amount not to exceed $10,000,000 at any Loan Party in respect of letters of creditone time outstanding, bank guaranteesand renewals, bankers’ acceptances, warehouse receipts or similar instruments issued or created in refinancings and extensions thereof on terms and conditions not materially less favorable to the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsapplicable debtor(s));
(g) unsecured Indebtedness incurred by any Loan Party assumed in respect of accounts payable to trade creditors for goods Permitted Acquisitions and services renewals, refinancings and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary extensions thereof on terms and paid within conditions not materially less favorable to the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPapplicable debtor(s));
(h) secured Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by assumed in Permitted Acquisitions in an aggregate principal amount not to exceed $15,000,000 at any Loan Party in the ordinary course of business;one time outstanding, and renewals, refinancings and extensions thereof; and
(i) Guarantees with respect to Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause clauses (a) through (h) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent8.03.
Appears in 2 contracts
Sources: Credit Agreement (Fti Consulting Inc), Credit Agreement (Fti Consulting Inc)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(ai) Obligations Indebtedness existing on the date hereof that is set forth in Schedule 6.01;
(ii) Indebtedness the proceeds of which are used to refinance any Indebtedness permitted under clause (i) above so long as (A) the obligor or obligors in respect of such refinancing Indebtedness are the same as those in respect of the Loan Parties Indebtedness being refinanced, (B) the principal amount of such refinancing Indebtedness does not exceed that of the Indebtedness being refinanced and (C) in the case of any Indebtedness being refinanced which is subordinated in whole or in part to the obligations of the Borrower hereunder, such refinancing Indebtedness shall be subordinated to such obligations to at least the same extent as the Indebtedness being refinanced, shall mature or be required to be prepaid, redeemed or repurchased no earlier than the date that is 90 days after the Maturity Date and shall be on terms no less favorable to the Lenders than the Indebtedness being refinanced, and the Borrower shall have notified the Administrative Agent of such refinancing and furnished to the Administrative Agent a copy of each agreement or instrument governing the refinancing Indebtedness;
(iii) Indebtedness under the Loan Documents;
(biv) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements Letters of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred Credit entered into in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPan aggregate stated amount not to exceed $75,000,000;
(hv) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party repurchase agreements in the ordinary course of business;
an aggregate amount not to exceed $150,000,000, provided that (i) Indebtedness of (i) any Loan Party owing all proceeds therefrom are used only to any other Loan Party pay amounts outstanding under this Agreement and (ii) Indebtedness owed by a Subsidiary that is such repurchase agreements are entered into not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment more than one week prior to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Dateamounts outstanding hereunder; and
(mvi) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent other Indebtedness in its sole discretion. For purposes an aggregate principal amount not in excess of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent$50,000,000.
Appears in 2 contracts
Sources: Senior Secured Term Loan Agreement (McDermott International Inc), Senior Secured Term Loan Agreement (McDermott International Inc)
Indebtedness. CreateThe Borrower will not, and will not permit any of its Subsidiaries to, create, incur, assume or suffer to exist or otherwise become or be liable in respect of any Indebtedness, except other than, without duplication, the following, without duplication (which constitutes “Permitted Indebtedness”)::
(a) Obligations Indebtedness in respect of the Loan Parties under the Loan DocumentsCredit Extensions and other Obligations;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not incurred by the Borrower or any extensions, renewals or replacements of such Indebtedness except its Subsidiaries (i) renewals and extensions expressly provided owing to any Person providing financing for in the agreements evidencing acquisition of any assets permitted to be acquired pursuant to Section 7.2.7 to finance its acquisition of such Indebtedness as the same are in effect on the date of this Agreement and assets, (ii) refinancings and extensions in respect of any such Indebtedness if the terms and conditions thereof are not less favorable Capitalized Lease Liabilities (but only to the obligor thereon or extent otherwise permitted by Section 7.2.7) and (iii) from time to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extendedtime for general corporate purposes; provided, such that the maximum aggregate amount of all Indebtedness permitted under the immediately preceding this clause (ib) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to at any time after the Indebtedness being extended, renewed or refinanced, (B) Restatement Effective Date exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom$15,000,000;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% Hedging Obligations of the aggregate consideration paid with Borrower or any of its Subsidiaries in respect to such assetof the Loans;
(d) intercompany Indebtedness of (x) any Subsidiary of the SBA PPP LoanBorrower owing to the Borrower or any of its Subsidiaries or (y) the Borrower to any of its Subsidiaries, which Indebtedness
(i) shall be evidenced by one or more promissory notes in form and substance satisfactory to the Agents which (except in the case of any such notes held by a Non-U.S. Subsidiary) have been duly executed and delivered to (and endorsed to the order of) the Administrative Agent in pledge pursuant to a Pledge Agreement; and
(ii) shall not be forgiven or otherwise discharged for any consideration other than payment (Dollar for Dollar) in cash unless the Agents otherwise consent;
(e) Indebtedness evidenced by the Senior Notes in respect of Swap Contracts designed an aggregate principal amount not to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposesexceed $130,000,000;
(f) Indebtedness incurred by any Loan Party outstanding on the Restatement Effective Date and identified in respect of letters of creditSchedule 7.2.2(f) ("Ongoing Indebtedness") hereto and refinancings, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;refundings and replacements thereof; and
(g) unsecured Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing Borrower or any of money) incurred its Subsidiaries in an aggregate principal amount which, together with the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02clause (b) hereto, shall not exceed $20,000,000 at any time outstanding; provided, thathowever, in each case that no Indebtedness otherwise permitted by clause (Ab), (d) (as such clause (d) relates to loans made by the Borrower to Subsidiaries which are not party to the Subsidiary Guaranty) or (g) may be incurred if, after giving effect to the incurrence thereof, any Default shall have occurred and be continuing, and provided, further, however, that all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception type described in clause (ad)(y) of this Section 7.03. Notwithstanding anything above that is owed to Subsidiaries which are not party to the contrary hereinSubsidiary Guaranty, no Loan Party shall have outstandingbe subordinated, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated in writing, to the Loans and other Obligations in a manner and on upon terms satisfactory to the Administrative AgentAgents.
Appears in 2 contracts
Sources: Credit Agreement (Brand Scaffold Services Inc), Credit Agreement (Brand Scaffold Services Inc)
Indebtedness. CreateSo long as any Notes remain outstanding, the Company and the Guarantors shall not, and shall not permit any of their Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):duplication:
(aA) Obligations of Indebtedness outstanding on the Loan Parties under Issue Date (including the Loan DocumentsNotes);
(bB) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except incurred in connection with the Plan (i) renewals and extensions expressly provided for in including the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extendedSenior Secured Credit Facility, and which shall further permit the average life principal amount of indebtedness under the Senior Secured Credit Facility to maturity thereof is greater than or equal be increased to that one hundred million dollars ($100,000,000) prior to any refinancing of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or Senior Secured Credit Facility);
(C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to additional Capital Leases incurred after the Issue Date and purchase money Indebtedness in an aggregate amount not to exceed $1,000,000 750,000 in the aggregate at any time outstanding, and any Refinancing Indebtedness in respect of such Indebtedness; provided that any such Indebtedness (xi) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured only by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (yii) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(dD) the SBA PPP Loanother unsecured Indebtedness in an aggregate principal amount not to exceed $250,000 at any time outstanding;
(eE) Indebtedness subordinated to the Notes so long as such Indebtedness has a maturity date one year past the Maturity Date and an interest rate lower than the Notes (the “Junior Indebtedness”);
(F) Indebtedness that is pari passu in right of payment to the Notes (including secured Indebtedness) if net pharmaceutical product revenue for the twelve (12) months prior to the incurrence of such Indebtedness, on a pro forma basis, exceeds 1:00 to 1:00 of all funded Indebtedness (excluding the Junior Indebtedness);
(G) Indebtedness in respect of Swap Contracts designed performance of bids, trade contracts, governmental contracts and leases (other than Indebtedness for borrowed money), statutory obligations, surety, stay, indemnity, customs and appeal bonds, performance bonds and other obligations of a like nature (including those to hedge against interest ratessecure health, foreign exchange rates or commodities pricing risks safety and environmental obligations), and, in each case, letters of credit in respect thereof, incurred in the ordinary course of business and not for speculative purposesbusiness;
(fH) non-recourse Indebtedness incurred by the Company or the Guarantors or any Loan Party in respect of letters their Subsidiaries to finance the payment of creditinsurance premiums of such Person;
(I) Indebtedness owed to any Person providing worker’s compensation, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claimsunemployment insurance and other social security legislation, health, disability or other employee benefits or property, casualty or liability insurance to the Company or self-the Guarantors or any of their Subsidiaries incurred in connection with such Person providing such benefits or insurance pursuant to customary reimbursement or other Indebtedness indemnification obligations to such Person;
(J) reimbursement obligations owed to banks and financial institutions with respect to reimbursement-type obligations regarding workers compensation claimscredit card services in an aggregate amount at any one time not exceeding $400,000;
(gK) Indebtedness incurred by any Loan Party in respect consisting of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless past due for more than 120 days after its stated due date (except for accounts payable contested in good faith by appropriate proceedings and reserved for substantially faith) which do not in accordance with GAAPthe aggregate exceed $750,000;
(hL) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by the Company and the Guarantors under the Deed Poll Constituting Loan Notes in an aggregate principal amount not to exceed $85,000,000 at any Loan Party in the ordinary course of businesstime outstanding;
(iM) Indebtedness of (i) finance leases with respect to AP101 and AP103 equipment in an amount not to exceed $5,000,000 in the aggregate at any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary time outstanding; provided that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced secured only by promissory notes the equipment financed thereunder;
(N) Indebtedness under that certain Finance Contract dated as of December 1, 2016 between Amryt Pharmaceuticals DAC and all such notes shall European Investment Bank, as the same may be subject amended, restated, supplemented or otherwise modified from time to a first priority Lien pursuant to time, from the Collateral Documents and period from the Issue Date up through one (B1) all such Business Day following the Issue Date which Indebtedness shall be unsecured and subordinated in right of payment to the payment paid in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less no later than one hundred eighty (1801) days Business Day following the Last Out Maturity Issue Date; and
(mO) the 2021 Preferred Stock on terms reasonably acceptable The refinancing of any Indebtedness that was permitted under this Indenture when it was incurred, only to the Administrative Agent in its sole discretion. For purposes extent such principal amount of determining compliance with this Section 7.03, all Obligations outstanding under such refinancing is not more than the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) principal amount of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder being refinanced, plus any customary fees and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentreasonable expenses.
Appears in 2 contracts
Sources: Indenture (Amryt Pharma PLC), Indenture (Amryt Pharma PLC)
Indebtedness. CreateBorrower shall not, and shall not permit any Subsidiary to, incur, assume create, assume, become or be liable in any manner with respect to, suffer or permit to exist exist, any IndebtednessIndebtedness or guarantee, except assume, endorse, or otherwise become responsible for (directly or indirectly) the followingperformance, without duplication (which constitutes “Permitted Indebtedness”):dividends or other obligations of any Person, except:
(a) Obligations of the Loan Parties under the Loan DocumentsObligations;
(b) Surviving purchase money Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (iincluding Capital Leases) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on arising after the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable hereof to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause extent secured by purchase money security interests in Equipment (iincluding Capital Leases) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount mortgages on Real Property not to exceed $1,000,000 3,500,000 in the aggregate at any time outstanding; provided that outstanding so long as such security interests and mortgages do not apply to any such property of Borrower or its Subsidiaries other than the Equipment or Real Property so acquired, and the Indebtedness (x) in secured thereby does not exceed the case cost of additional Capital Leases the Equipment or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such IndebtednessReal Property so acquired, as the case may be, and ;
(yc) in the case guarantees by any Subsidiaries of purchase money Indebtedness, shall constitute not less than 75% Borrower of the aggregate consideration paid with respect to such assetObligations in favor of Lender;
(d) Indebtedness of Borrower under interest swap agreements, interest rate cap agreements, interest rate collar agreements, interest rate exchange agreements and similar contractual agreements entered into for the SBA PPP Loanpurpose of protecting a Person against fluctuations in interest rates; provided, that, such arrangements are with banks or other financial institutions that have combined capital and surplus and undivided profits of not less than $250,000,000 and are not for speculative purposes and such Indebtedness shall be unsecured;
(e) Indebtedness of Borrower evidenced by or arising under the Senior Notes as in effect on the date hereof, provided, that:
(i) the aggregate amount of such Indebtedness shall not exceed $100,000,000 less the aggregate amount of all repayments, repurchases or redemptions, whether optional or mandatory, in respect thereof, plus interest thereon at the rate provided for in the Senior Notes as in effect on the date hereof,
(ii) Borrower and its Subsidiaries shall not, directly or indirectly, make any payments in respect of Swap Contracts designed such Indebtedness, except that Borrower may make regularly scheduled payments of interest and principal, if any, in respect of such Indebtedness when due in accordance with the terms of the Senior Notes as in effect on the date hereof,
(iii) Borrower and its Subsidiaries shall not, directly or indirectly, (A) amend, modify, alter or change in any material respect any terms of such Indebtedness or any of the Senior Notes or the Senior Note Indenture or any related agreements, documents and instruments, except that Borrower may, after prior written notice to hedge against Lender, amend, modify, alter or change the terms thereof so as to extend the maturity thereof or defer the timing of any payments in respect thereof, or to forgive or cancel any portion of such Indebtedness other than pursuant to payments thereof, or to reduce the interest ratesrate or any fees in connection therewith, foreign exchange rates or commodities pricing risks incurred (B) redeem, retire, defease, purchase or otherwise acquire such Indebtedness, or set aside or otherwise deposit or invest any sums for such purpose, and
(iv) Borrower shall furnish to Lender all notices of default or demands in connection with such Indebtedness received by Borrower or on its behalf, promptly after the ordinary course of business and not for speculative purposesreceipt thereof;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) unsecured Indebtedness of (i) any Loan Party owing Borrower arising after the date hereof to any third person (other Loan Party and (ii) than Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is otherwise permitted as an Investment pursuant to under this Section 7.02; 9.9), provided, that, in each case of the following conditions is satisfied as determined by Lender: (Ai) all such Indebtedness shall be evidenced by promissory notes on terms and all such notes conditions acceptable to Lender and shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated subordinate in right of payment to the right of Lender to receive the prior indefeasible payment and satisfaction in full payment of all of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination intercreditor agreement that between Lender and such third party, in any such case, is reasonably form and substance satisfactory to Lender, (ii) Lender shall have received not less than ten (10) days prior written notice of the Collateral Agent;
intention of Borrower to incur such Indebtedness, which notice shall set forth in reasonable detail satisfactory to Lender the amount of such Indebtedness, the person or persons to whom such Indebtedness will be owed, the interest rate, the schedule of repayments and maturity date with respect thereto and such other information as Lender may reasonably request with respect thereto, (jiii) unsecured Lender shall have received true, correct and complete copies of all agreements, documents and instruments evidencing or otherwise related to such Indebtedness, (iv) except as Lender may otherwise agree in writing, all of the proceeds of the loans or other accommodations giving rise to such Indebtedness shall be paid to Lender for application to the Obligations in such order and manner as Lender may determine, (v) on and before the date of incurring such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or have occurred, (vi) Borrower shall not, directly or indirectly, (A) amend, modify, alter or change the terms of such Indebtedness or any agreement, document or instrument related thereto, except, that, Borrower may, after prior written notice to Lender, amend, modify, alter or change the terms thereof so as to extend the maturity thereof, or defer the timing of any payments in respect thereof, or to forgive or cancel any portion of such Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to payments thereof), or to reduce the interest rate or any bona fide warranty fees in connection therewith, or contractual service obligations (B) redeem, retire, defease, purchase or performance otherwise acquire such Indebtedness (except pursuant to regularly scheduled payments permitted herein), or set aside or otherwise deposit or invest any sums for such purpose, and (vii) Borrower shall furnish to Lender all notices or demands in connection with such Indebtedness either received by Borrower or on its behalf promptly after the ordinary course of business of receipt thereof, or sent by Borrower or on its behalf concurrently with the Loan Partiessending thereof, as the case may be;
(kg) the Indebtedness set forth on Schedule 9.9 to the Information Certificate; provided, that, (i) Borrower may only make regularly scheduled payments of principal and interest in respect of the convertible notes; provided that, all such Indebtedness in respect accordance with the terms of the convertible notes agreement or instrument evidencing or giving rise to such Indebtedness as in effect on the date hereof, (ii) Borrower shall be unsecured and subordinated not, directly or indirectly, (A) amend, modify, alter or change the terms of such Indebtedness or any agreement, document or instrument related thereto as in right effect on the date hereof except, that, Borrower may, after prior written notice to Lender, amend, modify, alter or change the terms thereof so as to extend the maturity thereof, or defer the timing of payment any payments in respect thereof, or to the payment in full forgive or cancel any portion of such Indebtedness (other than pursuant to payments thereof), or to reduce the interest rate or any payment as a result of the conversion of fees in connection therewith, or (B) redeem, retire, defease, purchase or otherwise acquire such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that or set aside or otherwise deposit or invest any sums for such purpose, and (iii) Borrower shall furnish to Lender all notices or demands in connection with such Indebtedness matures not less than one hundred eighty (180) days following either received by Borrower or on its behalf, promptly after the Last Out Maturity Datereceipt thereof, or sent by Borrower or on its behalf, concurrently with the sending thereof, as the case may be; and
(mh) the 2021 Preferred Stock on terms reasonably acceptable Indebtedness of Borrower to the Administrative Agent its Subsidiaries in its sole discretion. For purposes of determining compliance accordance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a9.10(g) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agenthereof.
Appears in 2 contracts
Sources: Loan and Security Agreement (American Biltrite Inc), Loan and Security Agreement (Congoleum Corp)
Indebtedness. Create, incur, assume assume, permit, guarantee, or suffer otherwise become or remain, directly or indirectly, liable with respect to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations Indebtedness evidenced by this Agreement, together with Indebtedness to issuers of letters of credit that are the Loan Parties under the Loan Documentssubject of L/C Undertakings;
(b) Surviving Indebtedness listed set forth on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom7.1;
(c) Permitted Purchase Money Indebtedness;
(d) Subordinated Indebtedness with respect in an aggregate amount not to Capital Leases and purchase money exceed $2,000,000 outstanding at any one time;
(e) unsecured Indebtedness incurred by any Borrower in the ordinary course of business for borrowed money, in an aggregate amount not in excess of $2,000,000;
(f) Acquired Indebtedness in an amount not to exceed $1,000,000 in the aggregate 5,000,000 outstanding at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsone time;
(g) Indebtedness incurred by not otherwise permitted under this Section 7.1 in an aggregate amount outstanding at any Loan Party in respect of accounts payable time less than or equal to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP$500,000;
(h) Indebtedness consisting incurred by GCS (including such Indebtedness assumed in connection with the American Music Acquisition) to purchase musical instruments from trade creditors on extended terms; provided that the amount of guarantees resulting such Indebtedness shall not exceed $7,500,000 at any time outstanding;
(i) intercompany indebtedness owed from one Borrower to any other Borrower;
(j) endorsement of negotiable instruments for deposit or collection by any Loan Party or similar transactions in the ordinary course of business;
(ik) Indebtedness from MCI to any Borrower to the extent permitted under clause (g) of the definition of Permitted Investments; and
(l) refinancings, renewals, or extensions of Indebtedness permitted under clauses (b) through (j) of this Section 7.1 (and continuance or renewal of any Permitted Liens associated therewith) so long as: (i) any Loan Party owing to any other Loan Party the terms and conditions of such refinancings, renewals, or extensions do not materially impair the prospects of repayment of the Obligations by Borrowers, (ii) the net cash proceeds of such refinancings, renewals, or extensions do not result in an increase in the aggregate principal amount of the Indebtedness owed by so refinanced, renewed, or extended, (iii) such refinancings, renewals, refundings, or extensions do not result in a Subsidiary that is not a Guarantor Subsidiary to any Loan Party shortening of the average weighted maturity of the Indebtedness so refinanced, renewed, or extended, (iv) to the extent such that Indebtedness that is permitted as an Investment pursuant to Section 7.02; providedrefinanced, thatrenewed, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and or extended was subordinated in right of payment to the payment in full Obligations, then the subordination terms and conditions of the Obligations pursuant refinancing, renewal, or extension Indebtedness must be at least as favorable to the terms of the Lender Group as those applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty refinanced, renewed, or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured extended Indebtedness, provided that and (v) if such Indebtedness matures not less than one hundred eighty (180) days following refinancing, renewal, refunding, or extension involves the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance Senior Notes, such refinancing, renewal, refunding, or extension also complies with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent7.8(c).
Appears in 2 contracts
Sources: Loan and Security Agreement (Guitar Center Inc), Loan and Security Agreement (Guitar Center Inc)
Indebtedness. CreateThe Borrower will not permit any Subsidiary to create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of the Loan Parties Indebtedness under the Loan Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b)under the Euro Facility, but not and any extensionsrenewal and refinancing thereof, renewals or replacements of such Indebtedness except provided (i) renewals that the committed amount thereof is not increased to an aggregate amount greater than the lesser of (A) €850,000,000 and extensions expressly provided for in (B) the agreements evidencing any such Indebtedness as amount permitted under Section 6.19(b) of the same are in effect on the date of this Existing Credit Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders no other Subsidiary (other than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to a Subsidiary that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (ibecomes a borrower thereunder) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with becomes obligated in respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromthereof;
(c) Indebtedness with respect owed to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases Borrower or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% another Subsidiary of the aggregate consideration paid with respect to such assetBorrower;
(d) Indebtedness under performance bonds, surety bonds or letter of credit obligations to provide security under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation, and bank overdrafts, in each case, incurred in the SBA PPP Loanordinary course of business;
(e) Indebtedness of any Subsidiary existing as of the date hereof (other than Indebtedness described in clause (a) or (b) above), and any renewal and refinancing thereof (including any other Subsidiary becoming a primary obligor in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred thereof); provided that the principal amount thereof is not increased;
(f) Indebtedness under Hedging Agreements entered into in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case either (Ai) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and arises under clause (Bi) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms definition of “Indebtedness” or (ii) would not be reflected as indebtedness on a balance sheet of the applicable promissory notes or an intercompany subordination agreement that in Borrower and its Subsidiaries, calculated on a consolidated basis) under any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity DateCananwill Securitization; and
(mh) Other Indebtedness in an aggregate amount outstanding at any time not to exceed €1,500,000,000 minus the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes amount of determining compliance with this Section 7.03, all Obligations Indebtedness then outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create Euro Facility and any renewal or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentrefinancing thereof.
Appears in 2 contracts
Sources: Senior Bridge Term Loan Credit Agreement (Aon Corp), Credit Agreement (Aon Corp)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations in the case of the Parent, Indebtedness owed to a Guarantor, which Indebtedness shall constitute Pledged Debt pursuant to the terms of Article X;
(b) in the case of any Loan Party (other than the Borrower), Indebtedness owed to the Borrower or the Parent, which Indebtedness shall constitute Pledged Debt pursuant to the terms of Article X; and
(c) in the case of the Loan Parties Parties,
(i) Indebtedness under the Loan Documents;
(bii) Surviving Existing Indebtedness listed on Schedule 7.03(b)and, but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness case of financings secured directly or indirectly by “equipment” described in Section 1110(a)(3)(A)(i) of the Bankruptcy Code (as the same are in effect on the date of this Agreement and (ii) hereof), refinancings and extensions replacements thereof, provided that (A) the principal amount of any such Existing Indebtedness if shall not be increased above the terms and conditions principal amount thereof are outstanding immediately prior to such refinancing or replacement, (B) the maturity of such Existing Indebtedness shall not less favorable to be shortened as a result of such refinancing or replacement, (C) the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the weighted average life to maturity thereof is greater than or equal to that of the such Existing Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not be reduced as a result of such refinancing or replacement, and (AD) include Indebtedness the direct and contingent obligors therefor shall not be changed, as a result of an obligor that was not an obligor or in connection with respect to the Indebtedness being extended, renewed such refinancing or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromreplacement;
(ciii) Indebtedness with respect to Capital Leases and purchase money incurred after the Petition Date consisting of Guarantees permitted by Section 7.04;
(iv) Indebtedness under the Chicago Construction Loan in an amount not to exceed $1,000,000 6,990,362;
(v) debt securities, rent deferral notes and capital expenditure notes for the modification or improvement of aircraft, in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the each case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject issued to such additional Capital Leases or acquired asset existing aircraft lessors and/or Lender in connection with the incurrence modification of existing lease or financing arrangements;
(vi) the ATSB Secured Claim in an amount not to exceed $110,000,000;
(vii) Indebtedness in connection with retained aircraft and lease cure payment related thereto;
(viii) letters of credit issued by banks reasonably acceptable to the Lender to the extent that (i) the Loan Party requesting the issuance of any such letter of credit pledges to and deposits with the issuer of such Indebtednessletter of credit cash collateral in an amount not less than 100% of the face amount of such letter of credit and not in excess of 105% of the face amount of such letter of credit, as the case may be, and (yii) in the case event of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to a drawing under any such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters letter of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course issuer of business, including in respect such letter of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect credit looks first to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect the cash collateral for reimbursement of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party such drawing and (iiiii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party after giving effect to the extent issuance of each such Indebtedness is permitted as an Investment pursuant to Section 7.02; providedletter of credit, that, in each case (A) all the sum of any obligations under such Indebtedness letters of credit shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Dateexceed $40,000,000; and
(mix) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding Indebtedness under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative AgentSouthwest DIP Facility.
Appears in 2 contracts
Sources: Debtor in Possession Credit and Security Agreement (Ata Holdings Corp), Debtor in Possession Credit and Security Agreement
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, Indebtedness (exclusive of trade debt) except the following, without duplication (which constitutes “Permitted Indebtedness”):in respect of:
(a) Obligations of Indebtedness to Lenders under this Agreement and the Loan Parties under the Loan Other Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided incurred for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness Capital Expenditures permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromSection 7.6 hereof;
(c) Permitted Purchase Money Indebtedness;
(d) Indebtedness with respect to Capital Leases described on Schedule 7.8 and purchase money any refinancings of such Indebtedness, provided that the aggregate principal amount of such Indebtedness is not increased, the scheduled maturity dates of such Indebtedness are not shortened and such refinancing is on terms and conditions no more restrictive than the terms and conditions of the Indebtedness being refinanced;
(e) Indebtedness under any Interest Rate Hedge;
(f) Indebtedness not otherwise permitted hereunder in an amount not to exceed $1,000,000 in the aggregate 1,500,000 outstanding at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsone time;
(g) Indebtedness incurred assumed by any Loan a Credit Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance connection with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPSection 7.1 or Section 7.14;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments a judgment having been rendered against a Credit Party for collection by any Loan Party in the ordinary course of businesswhich reserves have been established;
(i) Indebtedness of (i) any Loan Party owing with respect to any other Loan Party and (ii) Indebtedness owed guarantees permitted by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent7.3;
(j) unsecured Indebtedness due under the Subordinated Loan Documentation; and any refinancings of such Indebtedness, provided that in connection with such refinancing: (other i) the aggregate principal amount of such Indebtedness is not increased, (ii) the scheduled maturity date of such Indebtedness is not shortened, (iii) the covenants or defaults are not materially more restrictive or more onerous than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance analogous provisions in the ordinary course Subordinated Loan Documentation as in effect on the date hereof, and (iv) an intercreditor agreement in form and substance satisfactory to Agent and the Required Lenders shall have been executed and delivered to Agent prior to the consummation of business of such refinancing (it being agreed that an intercreditor agreement containing terms substantially similar to the Loan Parties;terms set forth in the Subordination Agreement will be satisfactory); and
(k) Indebtedness in respect of connection with the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative AgentPPP.
Appears in 2 contracts
Sources: Revolving Credit, Term Loan and Security Agreement (Perma Fix Environmental Services Inc), Revolving Credit, Term Loan and Security Agreement (Perma Fix Environmental Services Inc)
Indebtedness. CreateCompany shall not permit its Subsidiaries which are not Subsidiary Guarantors to, directly or indirectly, create, incur, assume or suffer guaranty, or otherwise become or remain directly or indirectly liable with respect to, any Indebtedness in excess of an aggregate amount equal to exist any Indebtedness15% of Consolidated Net Worth of Company as of the last day of the most recently ended Fiscal Quarter for all such non-Subsidiary Guarantors, except the following, without duplication (which constitutes “Permitted Indebtedness”):
(a) Obligations of the Loan Parties under the Loan Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;for:
(i) Indebtedness existing on the date hereof and set forth in Schedule 7.1 and any refinancing, extension or renewals thereof to the extent the principal amount of such Indebtedness is not increased (i) any Loan Party owing except by an amount equal to any the unpaid accrued interest and premium thereon or other Loan Party amounts paid, and fees and expenses incurred, in connection with such refinancing, extension or renewal), and neither the final maturity nor the weighted average life to maturity of such Indebtedness is decreased;
(ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary under intercompany loans made to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced Subsidiary by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes Company or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral AgentSubsidiary;
(jiii) unsecured Indebtedness up to an aggregate of $1.5 billion incurred in connection with a Permitted Receivables Transaction;
(other than for borrowed moneyiv) that Indebtedness which may be deemed to exist pursuant with respect to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan PartiesHedge Agreements;
(kv) Indebtedness that may exist in respect of the convertible notes; provided that, all deposits or payments made by customers or clients of such Subsidiaries;
(vi) Indebtedness owed in respect of any netting services, overdrafts and related liabilities arising from treasury, depository and cash management services or in connection with any automated clearing-house transfers of funds;
(vii) Indebtedness up to an aggregate of $200,000,000 incurred in connection with or as a component of the convertible notes shall be unsecured purchase price of any property or that was existing on any property or any Person acquired by such Subsidiary at the time of acquisition thereof and subordinated assumed in right of payment to the payment in full connection with such acquisition (other than Indebtedness issued in connection with, or in anticipation of, such acquisitions), and any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) refinancing, extension or renewals thereof to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following extent the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes principal amount of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated not increased (except by an amount equal to the Loans unpaid accrued interest and premium thereon or other Obligations amounts paid, and fees and expenses incurred, in a manner connection with such refinancing, extension or renewal), and on terms satisfactory neither the final maturity nor the weighted average life to the Administrative Agent.maturity of such Indebtedness is decreased; and
Appears in 2 contracts
Sources: Credit Agreement (Express Scripts Holding Co.), Credit Agreement (Express Scripts Holding Co.)
Indebtedness. Create(a) The Borrowers will not, and will not permit any of their Subsidiaries to, create, incur, assume or suffer to exist or otherwise become or be liable in respect of any Indebtedness, except other than, without duplication, the following, without duplication (which constitutes “Permitted Indebtedness”)::
(ai) Obligations Indebtedness in respect of the Loan Parties under the Loan DocumentsLoans and other Obligations;
(bii) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on until the date of this Agreement and the initial Borrowing, Indebtedness identified in Item 8.2.6(a)(ii) (ii"Indebtedness to be Paid") refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromDisclosure Schedule;
(ciii) Indebtedness with respect to Capital Leases and purchase money existing as of the Effective Date which is identified in Item 8.2.6(a)(iii) ("Ongoing Indebtedness") of the Disclosure Schedule;
(iv) Indebtedness in an aggregate principal amount not to exceed $1,000,000 in the aggregate 10,000,000 at any time outstanding; provided that outstanding which is incurred by any such Indebtedness (x) in the case Borrower or any of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject its Subsidiaries to such additional Capital Leases or acquired asset in connection with the incurrence a vendor of any assets to finance its acquisition of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such assetassets;
(dv) the SBA PPP Loan;
(e) unsecured Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business (including open accounts extended by suppliers on normal trade terms in connection with purchases of goods and not for speculative purposesservices, but excluding Indebtedness incurred through the borrowing of money or Contingent Liabilities);
(fvi) Indebtedness incurred by any Loan Party in respect of letters Capitalized Lease Liabilities in amounts not in excess of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims$10,000,000 at any time outstanding;
(gvii) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPSubordinated Debt;
(hviii) other Indebtedness consisting of guarantees resulting from endorsement the Borrowers and their Subsidiaries in an aggregate amount not to exceed $10,000,000; and
(ix) other Indebtedness, provided that the net proceeds of negotiable instruments for collection by any Loan Party such other Indebtedness are used to repay, on a pro rata basis, Indebtedness under this Agreement and the Companion Agreement, and further provided, that the Commitments under this Agreement and the Commitments (as defined in the ordinary course Companion Agreement) shall be reduced, on a pro rata basis, by the amount of business;the net proceeds in excess of $50,000,000 of such other Indebtedness; provided, however, that no Indebtedness otherwise permitted by clauses (iv), (v), (vi), (vii), (viii) or (ix) shall be permitted if, after giving effect to the incurrence thereof, any Default shall have occurred and be continuing.
(b) ▇▇▇▇▇▇▇ shall not permit any Indebtedness of any of its Subsidiaries to exist except:
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and ▇▇▇▇▇▇▇ or another Subsidiary; and
(ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party in an amount which, when added to the extent such amount of Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be of ▇▇▇▇▇▇▇ subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness Liens (other than for borrowed moneyLiens described in Sections 8.2.2(b) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business and (c)), shall not exceed 15% of the Loan Parties;
(k) Indebtedness in respect sum of the convertible notes; provided that, all such total Indebtedness in respect of ▇▇▇▇▇▇▇ and its Subsidiaries and the convertible notes shall be unsecured Net Worth of ▇▇▇▇▇▇▇ and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative AgentSubsidiaries.
Appears in 2 contracts
Sources: Credit Agreement (Simpson Industries Inc), Credit Agreement (Simpson Industries Inc)
Indebtedness. Create(a) No Credit Party shall create, incur, assume or suffer permit to exist any Indebtedness, except the following, (without duplication (which constitutes “Permitted Indebtedness”):
(aduplication) Obligations of the Loan Parties under the Loan Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals Indebtedness secured by purchase money security interests and extensions expressly provided for Capital Leases permitted in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and Section 6.7(c), (ii) the Loans and the other Obligations, (iii) unfunded pension fund and other employee benefit plan obligations and liabilities to the extent they are permitted to remain unfunded under applicable law, (iv) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereof that do not have the effect of increasing the principal amount thereof or changing the amortization thereof (other than to extend the same) and extensions of any such Indebtedness if the that are otherwise on terms and conditions thereof are not no less favorable to the obligor thereon any Credit Party, Agent or to the Lenders any Lender, as determined by Agent, than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that terms of the Indebtedness being refinanced refinanced, amended or extended; providedmodified, such (v) Indebtedness permitted under the immediately preceding clause pursuant to Section 6.2(i) hereof, (ivi) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect Encore Software to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness Borrower in an aggregate amount not to exceed $1,000,000 7,200,000, so long as such Indebtedness is evidenced by an intercompany note, in form and substance satisfactory to Agent, and such intercompany note has been delivered and endorsed to Agent, and Indebtedness of Borrower to Encore Software, Inc., a California corporation pursuant to Section 5 of the Amendment No. 1 to Encore Purchase Agreement in an aggregate at any time outstandingprincipal amount not to exceed $1,150,000; provided that that, no Credit Party (other than Encore Software) shall guarantee, grant liens on its assets (including, without limitation, the equity interests in Encore Software) to secure, or otherwise be directly or indirectly liable for any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may berelated obligations, and (yvii) Indebtedness of BCI Eclipse to the Borrower, so long as (a) the related loans to BCI Eclipse from the Borrower are permitted pursuant to Section 6.2(i), and (b) such Indebtedness is evidenced by an intercompany note, in the case of purchase money Indebtednessform and substance satisfactory to Agent, shall constitute not less than 75% of the aggregate consideration paid with respect and such intercompany note has been delivered and endorsed to such asset;Agent.
(db) the SBA PPP Loan;
(e) Indebtedness No Credit Party shall, directly or indirectly, voluntarily purchase, redeem, defease or prepay any principal of, premium, if any, interest or other amount payable in respect of Swap Contracts designed to hedge against interest ratesany Indebtedness, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
than (i) Indebtedness of (i) any Loan Party owing to any other Loan Party and the Obligations; (ii) Indebtedness owed secured by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to Permitted Encumbrance if the extent asset securing such Indebtedness is has been sold or otherwise disposed of in accordance with Sections 6.8(b) or (c); (iii) Indebtedness permitted as an Investment pursuant to by Section 7.026.3(a)(iv) upon any refinancing thereof in accordance with Section 6.3(a)(iv); provided, that, (iv) other Indebtedness not in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents excess of $250,000; and (Bv) all such Indebtedness shall be unsecured and subordinated as otherwise permitted in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent6.14.
Appears in 2 contracts
Sources: Credit Agreement (Navarre Corp /Mn/), Credit Agreement (Navarre Corp /Mn/)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) the Obligations of and the Loan Parties under the Loan DocumentsNexstar Obligations;
(bi) Surviving second lien secured Indebtedness listed on Schedule 7.03(b)of the Borrower, but not any extensions, renewals or replacements so long as (A) after giving Pro Forma Effect to the incurrence of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extendedrelated Specified Transaction, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of no Default has occurred and is continuing continuing, (B) the Consolidated Total Secured Debt Leverage Ratio (calculated on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness and any related Specified Transaction) is not greater than 5.50 to 1.00 as of the end of the most recent Test Period, (C) such Indebtedness has a final maturity date equal to or would result therefrom;
later than 180 days after the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Term B Loans, and (cD) the terms and conditions of such Indebtedness reflect market terms on the date of issuance; provided that such Indebtedness shall not contain covenants (including financial maintenance covenants), taken as a whole, that are materially tighter (or in addition to), with respect to Capital Leases the borrower of such Indebtedness and purchase money Indebtedness its Restricted Subsidiaries, than those contained in an amount not to exceed $1,000,000 this Agreement and the Financial Covenants contained in the aggregate at any time outstanding; Nexstar Credit Agreement on the date of issuance with respect to the Mission Entities (except for covenants applicable only to the period after the Maturity Date of the Term B Loans) (provided that any such Indebtedness (x) in a certificate of a Responsible Officer of the case of additional Capital Leases or purchase money Indebtedness, shall be secured by Borrower delivered to the asset subject Administrative Agent at least five Business Days prior to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as together with a reasonably detailed description of the case may bematerial terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement, shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees)); and (yii) in the case of purchase money Indebtedness, shall constitute not less than 75% any Permitted Refinancing thereof;
(c) obligations of the aggregate consideration paid Borrower and its Restricted Subsidiaries (contingent or otherwise) existing or arising under any Swap Contract, provided that such obligations are (or were) entered into by such Person for the purpose of directly mitigating risks associated with respect to such assetfluctuations in interest rates or foreign exchange rates;
(d) Guarantee Obligations of the SBA PPP LoanMission Entities in respect of Indebtedness of any Loan Party otherwise permitted hereunder (except that an Immaterial Subsidiary may not, by virtue of this Section 7.02(d), guarantee Indebtedness that such Immaterial Subsidiary could not otherwise incur under this Section 7.02); provided that, if the Indebtedness being guaranteed is subordinated to the Obligations, such Guarantee Obligation shall be subordinated to the Guaranties of the Obligations on terms at least as favorable to the Lenders as those contained in the subordination of such Indebtedness;
(e) Indebtedness of any Mission Entity owing to any Mission Entity to the extent constituting an Investment permitted by Section 7.03 (other than Section 7.03(f)); provided that all such Indebtedness incurred following the Closing Date of any Loan Party or any Restricted Subsidiary of a Loan Party owed to any Person that is not a Loan Party shall be subject to subordination terms reasonably satisfactory to the Administrative Agent;
(f) (i) Attributable Indebtedness and other Indebtedness (including Capitalized Leases) of the Mission Entities financing the acquisition, construction, repair, replacement or improvement of fixed or capital assets (provided that such Indebtedness is incurred concurrently with or within 270 days after the applicable acquisition, construction, repair, replacement or improvement), (ii) Attributable Indebtedness arising out of Permitted Sale Leasebacks, and (iii) any Indebtedness incurred to refinance the Indebtedness set forth in the immediately preceding clauses (i) and (ii) so long as the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so refinanced except by an amount equal to unpaid accrued interest and premium thereon plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder, and as otherwise permitted under Section 7.02; provided that the aggregate principal amount of Indebtedness incurred by the Mission Entities under this Section 7.02(f) together with the aggregate principal amount of Indebtedness incurred by the Nexstar Entities under Section 7.02(f) of the Nexstar Credit Agreement and any refinancing Indebtedness in respect of Swap Contracts designed either thereof does not exceed the greater of (a) $25,000,000 and (b) 2.0% of Total Assets at the time of incurrence thereof;
(g) (i) Indebtedness of the Mission Entities assumed in connection with any Permitted Acquisition; provided that (A) such Indebtedness was not incurred in contemplation of such Permitted Acquisition, (B) the only obligors with respect to hedge against interest ratesany Indebtedness incurred pursuant to this clause (g) shall be those Persons who were obligors of such Indebtedness prior to such Permitted Acquisition (or in the case of a purchase of assets, foreign exchange rates or commodities pricing risks the purchaser of such assets), and (C) both immediately before and immediately after giving Pro Forma Effect to any such incurrence no Default shall have occurred and be continuing; provided that the aggregate principal amount of Indebtedness incurred by Non-Loan Parties under this Section 7.02(g) and Section 7.02(t), and Section 7.02(g) and Section 7.02(t) of the Nexstar Credit Agreement, and any Permitted Refinancing Indebtedness in respect of any thereof does not exceed $25,000,000; and (ii) any Permitted Refinancing of Indebtedness permitted by (and subject to the proviso of) the preceding clause (i);
(h) Indebtedness of the Mission Entities representing deferred compensation to employees of the Mission Entities incurred in the ordinary course of business and not for speculative purposesbusiness;
(fi) Indebtedness of the Mission Entities to the current or former officers, directors, partners, managers, consultants and employees, their respective estates, spouses or former spouses of the Mission Entities to finance the purchase or redemption of Equity Interests of the Borrower, in each case as permitted by Section 7.09 in an aggregate amount under this Section 7.02(i) and under Section 7.02(i) of the Nexstar Credit Agreement not to exceed $10,000,000 at any one time outstanding;
(j) Indebtedness incurred by the Mission Entities in a Permitted Acquisition, any Loan Party other Investment expressly permitted hereunder or any Disposition, in each case to the extent constituting indemnification obligations or obligations in respect of purchase price (including earn-outs) or other similar adjustments;
(k) Indebtedness consisting of obligations of the Mission Entities under deferred compensation or other similar arrangements incurred by such Person in connection with the Transaction and Permitted Acquisitions or any other Investment expressly permitted hereunder;
(l) Cash Management Obligations and other Indebtedness of the Mission Entities in respect of netting services, automatic clearinghouse arrangements, overdraft protections and similar arrangements in each case in connection with deposit accounts incurred in the ordinary course;
(m) Indebtedness of the Mission Entities consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case incurred in the ordinary course of business;
(n) Indebtedness incurred by the Mission Entities in respect of letters of credit, bank guarantees, bankers’ banker’s acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(go) Indebtedness incurred by any Loan Party obligations of the Mission Entities in respect of accounts payable to trade creditors for goods performance, bid, appeal and services surety bonds and current operating liabilities (not performance and completion guarantees and similar obligations provided by the result Borrower or any Restricted Subsidiary or obligations in respect of the borrowing letters of money) incurred credit, bank guarantees or similar instruments related thereto, in each case in the ordinary course of business or consistent with past practice;
(p) Intentionally Left Blank;
(q) other unsecured Indebtedness of the Mission Entities, so long as immediately before and immediately after giving Pro Forma Effect to any such incurrence no Default shall have occurred and be continuing, provided, further, that (i) the aggregate principal amount of such Indebtedness incurred by Restricted Subsidiaries that are not Guarantors together with the Nexstar Restricted Subsidiaries that are not Guarantors shall not exceed $25,000,000 in accordance with customary the aggregate at any one time outstanding, (ii) such Indebtedness has a final maturity date equal to or later than 180 days after the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Term B Loans, and (iii) the terms and paid within conditions of such Indebtedness (excluding pricing and optional prepayment or redemption terms) reflect market terms on the specified timedate of issuance; provided that such Indebtedness shall not contain covenants (including financial maintenance covenants), unless contested taken as a whole, that are materially tighter (or in addition to), with respect to the borrower of such Indebtedness and its Restricted Subsidiaries and any guarantor, than those contained in this Agreement and the Financial Covenants contained in the Nexstar Credit Agreement with respect to the Mission Entities on the date of issuance (except for covenants applicable only to the period after the Maturity Date of the Term B Loans); provided that a certificate of a Responsible Officer of the Borrower delivered to the Administrative Agent at least five Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith by appropriate proceedings that such terms and reserved for substantially in accordance conditions satisfy the foregoing requirement, shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with GAAPsuch determination (including a reasonable description of the basis upon which it disagrees);
(hr) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection incurred by a Non-Loan Party, and guaranties thereof by any Non-Loan Party Party, in an aggregate principal amount for all such Non-Loan Parties not to exceed the ordinary course greater of business(a) $8,500,000 and (b) 1.00% of the aggregate Total Assets of all such Non-Loan Parties at the time of incurrence;
(s) Indebtedness existing on the Closing Date and listed on Schedule 7.02(s) (the “Surviving Indebtedness”) and any Permitted Refinancing thereof;
(i) unsecured Indebtedness of the Mission Entities incurred to finance a Permitted Acquisition; provided that (iA) any Loan Party owing immediately before and immediately after giving Pro Forma Effect to any other such Permitted Acquisition, no Default shall have occurred and be continuing, (B) after giving Pro Forma Effect to any such Permitted Acquisition and the incurrence of such Indebtedness and any related Specified Transaction, the Nexstar Borrower is in compliance with the Consolidated First Lien Net Leverage Ratio and the Consolidated Total Net Leverage Ratio Financial Covenants, in each case computed on a Pro Forma Basis as of the end of the most recent Test Period, (C) such Indebtedness has a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Term B Loans, (D) the terms and conditions of such Indebtedness (excluding pricing and optional prepayment or redemption terms) reflect market terms on the date of issuance; provided that such Indebtedness shall not contain covenants (including financial maintenance covenants), taken as a whole, that are materially tighter (or in addition to), with respect to the borrower of such Indebtedness and its Restricted Subsidiaries and guarantors, than those contained in this Agreement and the Financial Covenants contained in the Nexstar Credit Agreement on the date of issuance with respect to the Mission Entities (except for covenants applicable only to the period after the Maturity Date of the Term B Loans) (provided that a certificate of a Responsible Officer of the Borrower delivered to the Administrative Agent at least five Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement, shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees)) and (E) the aggregate principal amount of Indebtedness that is incurred by Non-Loan Party Parties pursuant to this Section 7.02(t) and Section 7.02(g), and Section 7.02(t) and Section 7.02(g) of the Nexstar Credit Agreement shall not exceed $25,000,000 at any one time outstanding; and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary any Permitted Refinancing thereof;
(u) so long as immediately before and immediately after giving Pro Forma Effect to any Loan Party such incurrence no Default shall have occurred and be continuing, (i) subject to the terms of Section 2.05 with respect to the occurrence of a Repricing Transaction, unsecured or second Lien secured Indebtedness incurred by the Mission Entities to the extent such Indebtedness is permitted as an Investment pursuant that 100% of the Net Cash Proceeds therefrom are, immediately after the receipt thereof, applied solely to the prepayment of Term Loans in accordance with Section 7.022.05(b)(iii); provided, that, in each case provided that (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant not mature earlier than the Maturity Date with respect to the Collateral Documents and relevant tranche of Term Loans being refinanced, (B) all as of the date of the incurrence of such Indebtedness, the Weighted Average Life to Maturity of such Indebtedness shall not be unsecured and subordinated in right shorter than that of payment the remaining Term Loans being refinanced, (C) no Restricted Subsidiary is a borrower or guarantor with respect to the payment in full of such Indebtedness unless such Restricted Subsidiary is a Subsidiary Guarantor which shall have previously or substantially concurrently guaranteed the Obligations pursuant to the applicable Guaranty, (D) the other terms and conditions of such Indebtedness (excluding pricing and optional prepayment or redemption terms) reflect market terms on the date of issuance; (E) with respect to the incurrence of second lien secured Indebtedness, a customary intercreditor agreement is entered into for the benefit of the applicable promissory notes or an intercompany subordination agreement Secured Parties and providing that in any such case, is reasonably satisfactory Liens securing such Indebtedness are second Liens and subordinate to the Collateral Agent;
Liens securing the Obligations for the benefit of the Secured Parties, (jF) unsecured such Indebtedness shall not contain covenants (other including financial maintenance covenants), taken as a whole, that are not materially tighter than for borrowed money(or in addition to) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance those contained in this Agreement and the Financial Covenants contained in the ordinary course Nexstar Credit Agreement on the date of business issuance (except for covenants applicable only to the period after the Maturity Date of the Loan Parties;
(k) Indebtedness in respect Term B Loans); provided that a certificate of a Responsible Officer of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable Borrower delivered to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything at least five Business Days prior to the contrary hereinincurrence of such Indebtedness, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in together with a manner and on terms satisfactory to the Administrative Agent.reason
Appears in 2 contracts
Sources: Credit Agreement (Mission Broadcasting Inc), Credit Agreement (Nexstar Broadcasting Group Inc)
Indebtedness. CreatePermit any Subsidiary to create, issue, incur, assume assume, become liable in respect of or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations Indebtedness of the any Foreign Subsidiary Borrower pursuant to any Loan Parties under the Loan DocumentsDocument;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable Subsidiary to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromother Group Member;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 Guarantee Obligations incurred in the aggregate at ordinary course of business by any time outstanding; provided that Subsidiary of obligations of any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such assetWholly Owned Subsidiary;
(d) Indebtedness outstanding on the SBA PPP Loandate hereof and listed on Schedule 7.2(d) and any refinancings, refundings, renewals or extensions thereof (without shortening the maturity, or increasing the principal amount, thereof), in an aggregate amount outstanding not to exceed $10,000,000;
(e) Indebtedness in respect of Swap Contracts designed Capital Lease Obligations and purchase money obligations to hedge against interest ratesfinance the acquisition of fixed or capital assets and any refinancings, foreign exchange rates refundings, renewals or commodities pricing risks extensions thereof (without increasing the amount thereof); provided that, at the times of incurrence of any Indebtedness pursuant to this paragraph (e), after giving effect thereto, the aggregate outstanding principal amount of all Indebtedness incurred in the ordinary course of business and pursuant to this paragraph (e) shall not for speculative purposesexceed $25,000,000;
(f) Indebtedness incurred by of any Loan Party in respect of letters of creditPerson that becomes a Subsidiary after the date hereof and any refinancings, bank guaranteesrefundings, bankers’ acceptances, warehouse receipts renewals or similar instruments issued or extensions thereof without increasing the amount thereof; provided that (i) such Indebtedness exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary and (ii) the ordinary course aggregate principal amount of businessIndebtedness permitted by this clause (f), including in respect of workers compensation claimswhen combined with Indebtedness permitted under clause (g) below, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsshall not exceed $100,000,000 at any time outstanding;
(g) Receivables Transaction Attributed Debt pursuant to any Qualified Receivables Transaction in an aggregate amount, when combined with Indebtedness incurred by permitted under clause (f) above, not to exceed $100,000,000 at any Loan Party in respect of accounts payable to trade creditors for goods time outstanding and services all yield, interest, fees, indemnities and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;other amounts related thereto; and
(h) in addition to Indebtedness consisting otherwise expressly permitted by the preceding paragraphs (a) through (g) of guarantees resulting from endorsement this Section 7.2, other Indebtedness of negotiable instruments for collection by any Loan Party Subsidiary; provided that (x) no Event of Default shall be in existence or result therefrom (including, on a pro forma basis, pursuant to Section 7.1) and (y) at the ordinary course time of business;
incurrence of any Indebtedness pursuant to this paragraph (i) Indebtedness h), after giving effect thereto, the sum, without duplication, of (i) any Loan Party owing the aggregate outstanding principal amount of all Indebtedness incurred pursuant to any other Loan Party this paragraph (h) and (ii) the aggregate outstanding principal amount of all Indebtedness owed secured by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment Lien incurred pursuant to Section 7.02; provided, that, in each case (A7.3(k) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right not exceed 5% of payment to the payment in full Consolidated Total Assets determined as of the Obligations pursuant to the terms last day of the applicable promissory notes or an intercompany subordination agreement that in any such case, most recent fiscal quarter for which the relevant financial information is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentavailable.
Appears in 2 contracts
Sources: Credit Agreement (Roper Industries Inc), Credit Agreement (Roper Industries Inc)
Indebtedness. Create(a) Irish Holdco will not, and will not permit any Restricted Subsidiary to, incur, assume directly or suffer to exist indirectly, any Indebtedness, except and Irish Holdco will not issue any Disqualified Equity Interests and will not permit any of its Restricted Subsidiaries to issue any shares of Preferred Equity (other than the followingissuance of Preferred Equity by any Restricted Subsidiary to Irish Holdco or another Restricted Subsidiary that is a Loan Party and, without duplication to the extent such issuance constitutes a Permitted Investment hereunder or is otherwise permitted under Section 6.04, the issuance of Preferred Equity by any Restricted Subsidiary that is not a Loan Party to Irish Holdco or another Restricted Subsidiary); provided, however, Irish Holdco will be entitled to incur Indebtedness or issue Disqualified Equity Interests and any Restricted Subsidiary will be entitled to incur Indebtedness or issue Preferred Equity, so long as (which constitutes “Permitted Indebtedness”):
i) no Default or Event of Default shall have occurred and be continuing or would exist immediately after giving effect (aincluding giving effect on a pro forma basis) Obligations to such incurrence or issuance, (ii) such Indebtedness is not scheduled to mature prior to the date that is 91 days after the Latest Maturity Date and (ii) after giving effect to such incurrence or issuance on a pro forma basis for the most recently ended Test Period prior to such incurrence or issuance (or, in the event the proceeds thereof are to be used to finance a Limited Condition Acquisition, prior to the date the definitive agreements for such Limited Condition Acquisition are entered into), the Fixed Charge Coverage Ratio would be at least 2.00 to 1.00 (but excluding, for purposes of such calculation, the proceeds of such Incremental Loans or any other Indebtedness incurred on such date in the calculation of the Loan Parties under Unrestricted Cash); provided, further, that any such Indebtedness of non-Guarantor Subsidiaries, when combined with all Indebtedness incurred pursuant to Section 6.01(b)(xi) hereof, shall not exceed, in the Loan Documentsaggregate, $40,000,000 at any time outstanding;
(b) Surviving Indebtedness listed on Schedule 7.03(bNotwithstanding Section 6.01(a), but not Irish Holdco and its Restricted Subsidiaries will be entitled to incur any extensions, renewals or replacements all of such the following Indebtedness except (collectively “Permitted Debt”):
(i) renewals The Secured Obligations (including any Incremental Term Loans) and extensions expressly provided for any Credit Agreement Refinancing Indebtedness;
(ii) Indebtedness owed to and held by Irish Holdco or a Restricted Subsidiary as permitted under Section 6.04; provided, that (i) any subsequent issuance or transfer of any Equity Interest that results in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement being held by a Person other than Irish Holdco or a Restricted Subsidiary and (ii) refinancings and extensions any subsequent transfer of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (xother than to Irish Holdco or a Restricted Subsidiary) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject deemed, in each case, to such additional Capital Leases or acquired asset in connection with constitute the incurrence of such IndebtednessIndebtedness by the obligor thereon that was not permitted by this clause (ii));
(iii) Indebtedness of Irish Holdco to any Restricted Subsidiary and of any Restricted Subsidiary to Irish Holdco or any other Restricted Subsidiary (including, as without limitation, pursuant to any Intercompany Closing Date Loans and to consummate the case may beTransactions (including, without limitation, the Acquisition)); provided that (x) such Indebtedness of any Restricted Subsidiary that is not a Loan Party owed to any Loan Party is a Permitted Investment or is otherwise permitted under Section 6.04, and (y) any Indebtedness consisting of any Intercompany Closing Date Loan shall be represented by a promissory note pledged to the Collateral Agent as provided in the case definition of purchase money IndebtednessIntercompany Closing Date Loan contained herein, and (z) any Indebtedness owing by any Loan Party to a Restricted Subsidiary which is not a Loan Party shall constitute not less than 75% be subordinated in right of payment to the aggregate consideration paid with respect Secured Obligations on a basis, and pursuant to such assetan agreement, reasonably satisfactory to the Administrative Agent;
(div) Indebtedness of a Restricted Subsidiary incurred and outstanding on or prior to the date on which such Subsidiary was acquired by Irish Holdco (other than Indebtedness incurred in connection with, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Subsidiary became a Subsidiary or was acquired by Irish Holdco); provided, that on the date of such acquisition and after giving effect thereto on a pro forma basis, either (A) Irish Holdco would be entitled to incur at least $1.00 of additional Indebtedness pursuant to Section 6.01(a), or (B) the SBA PPP LoanFixed Charge Coverage Ratio shall be the same or greater than such ratio, in each case as in effect immediately prior to the consummation thereof;
(ev) Permitted Refinancing Indebtedness in respect of Indebtedness incurred pursuant to Section 6.01(a), Sections 6.01(b)(iv) or (xvii) or this clause (v);
(vi) Swap Contracts designed to hedge against interest ratesAgreements permitted under Section 6.05;
(vii) (A) obligations in respect of worker’s compensation and self-insurance and performance, foreign exchange rates bid, stay, customs, appeal, replevin and surety bonds and performance and completion guarantees provided by Irish Holdco or commodities pricing risks incurred any Restricted Subsidiary in the ordinary course of business business, and not for speculative purposes;
(fB) Indebtedness incurred by any Loan Party reimbursement and indemnification obligations in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or banker’s acceptances and other similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability obligations specified in clause (A) or other employee benefits to landlords or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party vendors in the ordinary course of business;
(iviii) ACH Indebtedness and Indebtedness owed in respect of business credit card programs and any netting services, overdrafts and related liabilities arising from treasury, depository and cash management services;
(ix) Indebtedness consisting of any Guarantee by Irish Holdco or any Restricted Subsidiary of Indebtedness or other obligations of Irish Holdco or any of its Subsidiaries; provided that the aggregate amount of Indebtedness and other payment obligations (other than in respect of any overdrafts and related liabilities arising in the ordinary course of business from treasury, depository and cash management services or in connection with any ACH Indebtedness) of Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall constitute Permitted Investments (without giving effect to clause (11) thereof) or otherwise be permitted under Section 6.04; provided, further, that if the Indebtedness being guaranteed is subordinated to or pari passu with the Loans, then the Guarantee must be subordinated or pari passu, as applicable, to the same extent as the Indebtedness guaranteed;
(x) Capital Lease Obligations, Synthetic Lease Obligations and Indebtedness incurred after the Closing Date in respect of purchase money indebtedness and Permitted Refinancing Indebtedness in respect thereof and in an aggregate principal amount on the date of incurrence that, when taken together with the principal amount of all other Indebtedness then outstanding and incurred pursuant to this clause (x), does not exceed the greater of $15,000,000 or 1.00% of Total Assets;
(xi) Other Indebtedness of non-Guarantor Subsidiaries and Foreign Subsidiaries in an aggregate principal amount on the date of incurrence that, when taken together with the principal amount of all other Indebtedness then outstanding and incurred pursuant to this clause (xi), does not exceed the greater of $15,000,000 or 1.00% of Total Assets;
(xii) Indebtedness of Irish Holdco or any of its Restricted Subsidiaries consisting of (i) the financing of insurance premiums with the providers of such insurance or their affiliates or (ii) take-or-pay obligations contained in supply agreements, in each case, in the ordinary course of business;
(xiii) Indebtedness incurred in connection with judgments, decrees, attachments or awards that do not constitute an Event of Default;
(xiv) Indebtedness in the form of (i) guarantees of loans and advances to officers, directors, consultants and employees, in an aggregate amount not to exceed $5,000,000 at any Loan Party owing to any other Loan Party one time outstanding, and (ii) reimbursements owed to officers, directors, consultants and employees of Irish Holdco or any of its Subsidiaries or Irish Holdco’s direct or indirect parent companies;
(xv) Indebtedness owed by consisting of obligations to make payments to current or former officers, directors and employees of Irish Holdco, any of its Subsidiaries or Irish Holdco’s direct or indirect parent companies, their respective estates, spouses or former spouses with respect to the cancellation, purchase or redemption of Equity Interests of Irish Holdco, any of its Subsidiaries, or any of Irish Holdco’s direct or indirect parent companies to the extent permitted under Section 6.04;
(xvi) Indebtedness (i) incurred in connection with a Subsidiary Permitted Receivables Facility that is not a Guarantor recourse to Irish Holdco or any Restricted Subsidiary to any Loan Party to or (ii) incurred for working capital purposes, in an aggregate principal amount on the extent such date of incurrence that, when taken together with the principal amount of all other Indebtedness is permitted as an Investment then outstanding and incurred pursuant to Section 7.02; providedthis clause (xvi), that, in each case does not exceed $50,000,000;
(xvii) (A) all the Horizon Convertible Notes (and any Guarantees thereof by Irish Holdco), (B) any other Indebtedness that is outstanding on the Closing Date and set forth in Schedule 6.01, (C) the New Horizon Unsecured Notes (and any Guarantees thereof by the Guarantors and (D) any refinancing, extensions, renewals or replacements of any such Indebtedness shall be evidenced by promissory notes that does not increase the outstanding principal amount thereof (other than with respect to unpaid accrued interest and all premium thereon, any committed or undrawn amounts and underwriting discounts, fees, commissions and expenses, associated with such notes shall be subject to a first priority Lien Indebtedness));
(xviii) Indebtedness arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guaranties, surety bonds or performance bonds securing the performance of Irish Holdco or any of its Restricted Subsidiaries pursuant to such agreements, in connection with Permitted Acquisitions, the Collateral Documents Acquisition or permitted Dispositions;
(xix) Alternative Incremental Facility Indebtedness and Permitted Refinancing Indebtedness in respect thereof provided that (A) no Default or Event of Default shall have occurred and be continuing on the date of incurrence thereof, both immediately prior to and immediately after giving effect to such incurrence, and (B) all as of the end of the most recently ended Test Period prior to the effectiveness of such Alternative Incremental Facility Indebtedness (or, to the extent Lenders funding the Alternative Incremental Facility Indebtedness agree, in the case the proceeds thereof are used to finance a Limited Condition Acquisition, as of the date the definitive agreements for such Limited Condition Acquisition are entered into) on a pro forma basis (after giving effect to the use of proceeds of such Alternative Incremental Facility Indebtedness and any Permitted Acquisition or other acquisition or Investment to be consummated in connection therewith) (x) the First Lien Net Leverage Ratio shall be less than 3.50:1.00 (calculated based on the same assumptions as those set forth in Section 2.17(d)(ii)(B)(I) and excluding, for purposes of such calculation, the proceeds of such Incremental Loans or any other Indebtedness incurred on such date in the calculation of the Unrestricted Cash)) and (y) the Total Net Leverage Ratio shall be less than 5.75:1.00 (calculated based on the same assumptions as those set forth in Section 2.17(d)(ii)(B)(II) and excluding, for purposes of such calculation, the proceeds of such Incremental Loans or any other Indebtedness incurred on such date in the calculation of the Unrestricted Cash));
(xx) Indebtedness in the form of an intercompany note issued in connection with a Permitted Acquisition involving a tender offer followed by a short form merger (i.e. a statutory short form merger that requires no further approvals to consummate); provided that (i) such short form merger is consummated within five Business Days of the incurrence of such Indebtedness and (ii) not later than three Business Days after consummation of the related short form merger, such Indebtedness (x) is extinguished or retired or (y) otherwise constitutes a Permitted Investment; and
(xxi) Indebtedness of Irish Holdco or of any of the Restricted Subsidiaries in an aggregate principal amount on the date of incurrence that, when taken together with all other Indebtedness of Irish Holdco and the Restricted Subsidiaries then outstanding and incurred pursuant to this clause (xxi), does not exceed the greater of $60,000,000 or 2.50% of Total Assets.
(c) For purposes of determining compliance with any Dollar-denominated restriction on the incurrence of Indebtedness, the Dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be unsecured calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term debt, or first committed, in the case of revolving credit debt; provided, that if such Indebtedness is incurred to extend, replace, refund, refinance, renew or defease other Indebtedness denominated in a foreign currency, and such extension, replacement, refunding, refinancing, renewal or defeasance would cause the applicable Dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such extension, replacement, refunding, refinancing, renewal or defeasance, such Dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being extended, replaced, refunded, refinanced, renewed or defeased, plus the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing. The principal amount of any Indebtedness incurred to refinance other Indebtedness, if incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such respective Indebtedness is denominated that is in effect on the date of such refinancing;
(d) The accrual of interest, the accretion of accreted value and the payment of interest in the form of additional Indebtedness shall not be deemed to be an incurrence of Indebtedness for purposes of this Section 6.01. The principal amount of any non-interest bearing Indebtedness or other discount security constituting Indebtedness at any date shall be the principal amount thereof that would be shown on a balance sheet of Irish Holdco dated such date prepared in accordance with GAAP.
(e) Irish Holdco will not, and will not permit any Guarantor to, directly or indirectly incur any Indebtedness (including Permitted Debt) that is subordinated or junior in right of payment to any Indebtedness of Irish Holdco or such Guarantor, as the case may be, unless such Indebtedness is expressly subordinated in right of payment to the payment in full of Obligations or the Obligations pursuant applicable Guarantee to the terms extent and in the same manner as such Indebtedness is subordinated to other Indebtedness of Irish Holdco or such Guarantor, as the applicable promissory notes or an intercompany subordination agreement case may be; provided, that in any such case, is reasonably satisfactory to the Collateral Agent;
(ji) unsecured Indebtedness (other than for borrowed money) that may shall not be deemed to exist pursuant treated as subordinated or junior to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
other Indebtedness merely because it is unsecured and (kii) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall not be unsecured and treated as subordinated or junior in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that Indebtedness merely because such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance has a junior priority with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing respect to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentcollateral.
Appears in 2 contracts
Sources: Credit Agreement (Horizon Pharma PLC), Credit Agreement (Horizon Pharma PLC)
Indebtedness. CreateThe Borrower will not, nor will it permit any of its Subsidiaries to, create, incur, assume or suffer permit to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of the Loan Parties under the Loan DocumentsIndebtedness created hereunder;
(b) Surviving Indebtedness listed existing on the Effective Date the principal or face amount of which does not exceed $10,000,000 with respect to each individual item of Indebtedness or that is otherwise set forth in Part A of Schedule 7.03(b)I, but not and any extensionsextension, renewals renewal, refinancing or replacements replacement of any such Indebtedness except so long as (i) renewals and extensions expressly provided for in the agreements evidencing any such existing Indebtedness as the same are in effect on the date of being extended, renewed, refinanced or replaced pursuant to this Agreement clause (b) does not constitute Senior Unsecured Indebtedness or Subordinated Indebtedness and (ii) refinancings and extensions at the time of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon extension, renewal, refinancing or to the Lenders than the Indebtedness being refinanced or extendedreplacement, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; providedafter giving effect thereto, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness the Borrower shall be in compliance with Section 7.10 (the determination of an obligor such ratios to be calculated under the assumption that was not an obligor with respect to such extension, renewal, refinancing or replacement occurred at the Indebtedness being extended, renewed or refinanced, beginning of the respective period) and (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any no Default or Event of Default has shall have occurred and is be continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstandinghereunder; provided that any such Indebtedness (x) in the case principal of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may beand interest on, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness all other amounts owing in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in Indebtedness under the ordinary course of business and not for speculative purposes;
Existing Credit Agreement (f) Indebtedness incurred by any Loan Party other than in respect of letters of creditcredit which, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created as provided in Section 2.05(m) are to become Letters of Credit hereunder) and Specified Vincor Obligations shall in any event be repaid in full as promptly as practicable following the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of businessArrangement Effective Date;
(i) Indebtedness outstanding in respect of (i) any Loan Party owing to any other Loan Party the Senior Unsecured Notes and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) other unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notesSubordinated Indebtedness); provided that, all such Indebtedness in respect of that the convertible notes following conditions shall be unsecured satisfied with respect to such other Indebtedness (each of which shall be fulfilled in form and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms substance reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.):
(A) the Net Available Proceeds of such other Indebtedness shall be applied to (x) prepay Loans in accordance with Section 2.10(b)(iii), (y) refinance or pay at maturity the Senior Unsecured Indebtedness (in accordance with Section 7.12) or (z) finance one or more Acquisitions pursuant to Section 7.05(b) (provided that the aggregate principal amount of such Senior Unsecured Indebtedness the Net Available Proceeds of which is applied to finance one or more such Acquisitions shall not exceed U.S.$750,000,000 unless at the time such Indebtedness is incurred, the Senior Debt Ratio is less than or equal to 3.0 to 1 (the determination of such ratio to be calculated as of the last day of the most recently-ended fiscal quarter of the Borrower under the assumption that such Indebtedness was issued at the beginning of the applicable calculation period);
(B) the terms of such Indebtedness shall not provide for payment of any portion of the principal thereof prior to the date six months after the final maturity of the Loans hereunder;
(C) terms in respect of financial and other covenants, events of default and mandatory prepayments applicable to such Indebtedness shall be no more restrictive in any material respect on the Borrower or any of its Subsidiaries than the terms of the Senior Unsecured Notes;
(D) at the time of issuance of such Indebtedness, and after giving effect thereto, the Borrower shall be in compliance with Section 7.10 (the determination of such ratios to be calculated under the assumption that such Indebtedness was issued at the beginning of the respective period and that any other Indebtedness to be retired with the proceeds thereof was in fact retired on such date of issuance), and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer to such effect setting forth in reasonable detail the computations necessary to determine such compliance (including, if applicable, computations in reasonable detail as to the satisfaction of the conditions specified in clauses (A) above);
(E) at the time of such issuance, and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing hereunder; and
(F) prior to such issuance, the Borrower shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect specified in the foregoing clauses (C), (D) and (E) (and setting forth in reasonable detail the computations necessary to determine compliance with said clause (D) and including, if applicable, computations in reasonable detail as to the satisfaction of the conditions specified in the foregoing clause (A));
Appears in 2 contracts
Sources: Credit Agreement (Constellation Brands, Inc.), Credit Agreement (Constellation Brands, Inc.)
Indebtedness. CreateThe Company will not, incurand will not permit any Restricted Subsidiary, assume to create, incur or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) The Loans and other Obligations of the Loan Parties under the Loan Documents;
, (b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness Senior Secured Loan Documents in an aggregate outstanding amount not to exceed $1,000,000 2,691,000,000 (less the amount of any Indebtedness outstanding, if any, under clause (d) below), (c) Indebtedness of the Company in respect of the New Senior Unsecured Notes; provided that the aggregate principal amount of Indebtedness at any time outstanding under clauses (a) and (c) shall not exceed $500,000,000 and (d) if the Replacement Facilities Effective Date has not occurred and the Existing Loan Agreement (or backstop facilities in replacement thereof) remains outstanding, Indebtedness thereunder in an aggregate principal amount not to exceed $750,000,000 (it being understood that to the extent the Replacement Facilities are outstanding, such Indebtedness under this clause (d) shall not be outstanding at the same time);
(ii) Indebtedness of the Company and its Restricted Subsidiaries existing as of the Execution Date and set forth on Schedule 6.18 and additional Indebtedness consisting of working capital facilities, letter of credit facilities, bank guarantee facilities or similar facilities; provided that Indebtedness outstanding in reliance on this clause (ii) shall not in the aggregate at exceed $50,000,000;
(iii) Indebtedness consisting of avals by any time outstanding; provided that any such Indebtedness (x) in of the case of additional Capital Leases Company or purchase money Indebtedness, shall be secured by its Restricted Subsidiaries for the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may bebenefit of, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) obligations which are not classified as Indebtedness of, any of the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates Company or commodities pricing risks incurred its Restricted Subsidiaries which are entered into in the ordinary course of business and not for speculative purposesconsistent with standard business practices;
(fiv) Indebtedness incurred of any Person that becomes a Restricted Subsidiary after the date hereof (other than the Target and its Restricted Subsidiaries); provided that such Indebtedness existed at the time such Person becomes a Restricted Subsidiary and was not created in contemplation of or in connection with such Person becoming a Restricted Subsidiary, and the aggregate principal amount of Indebtedness permitted by this Section 6.18(iv) shall not exceed $25,000,000 at any Loan Party time outstanding;
(v) Any Permitted Refinancing Indebtedness in respect of letters any Indebtedness referred to in clauses (i)(b), (i)(c) or (i)(d) (to the extent such Permitted Refinancing Indebtedness otherwise complies with the requirements set forth in clause (i)(d) (it being understood such amount may be increased in compliance with the definition of creditPermitted Refinancing Indebtedness)), bank guarantees(ii), bankers’ acceptances, warehouse receipts (iii) or (iv) above;
(vi) Indebtedness arising from (a) the endorsement of negotiable instruments for deposit or collection or similar instruments issued or created transactions in the ordinary course of business, including in respect of workers compensation claims, health, disability or (b) the honoring by a bank or other employee benefits financial institution of a check, draft or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
similar instrument inadvertently (g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred except in the ordinary course case of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(hdaylight overdrafts) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party drawn against insufficient funds in the ordinary course of business;
(ivii) Receivables Indebtedness of (iexcluding any intercompany Indebtedness among the Company and its Restricted Subsidiaries) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to under Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent6.24;
(jviii) unsecured Indebtedness (other than Indebtedness for borrowed money) that may be deemed arising from agreements of the Company or a Subsidiary providing for indemnification, contribution, earnout, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection any acquisition or Disposition otherwise permitted under this Agreement;
(ix) Integrated Service Contract Debt in an aggregate amount outstanding at any one time not to exist pursuant to any bona fide warranty or contractual service obligations or performance exceed $100,000,000;
(x) Indebtedness incurred in the ordinary course of business in connection with cash pooling arrangements and cash management incurred in the ordinary course of business in respect of netting services and similar arrangements in each case in connection with cash management and deposit accounts, but only to the Loan Partiesextent, with respect to any such arrangements, that the total amount of deposits subject to such arrangements equals or exceeds the total amount of overdrafts or similar obligations subject thereto;
(kxi) Indebtedness in respect of performance, surety, customs and appeal bonds, or any indemnity agreement related thereto, arising in the convertible notesordinary course of business;
(xii) Other Indebtedness of the Company and the Guarantors; provided that, at the time of the creation, incurrence or assumption of such other Indebtedness and after giving effect thereto, the aggregate amount of all such other Indebtedness does not exceed an amount equal to the greater of $100,000,000 and 2.5% of Total Tangible Assets as shown on or determined in accordance with the most recent financial statements of the Company delivered pursuant to Section 6.1(i) or (ii);
(xiii) Guarantee Obligations in respect of Indebtedness permitted under this Section 6.18; provided that (i) if any Indebtedness that is Guaranteed is subordinated to the Obligations then any Guarantee Obligations in respect of such Indebtedness shall be subordinated to the Obligations of the applicable Loan Party to the same extent and on terms not materially less favorable to the Lenders as the Indebtedness so Guaranteed is subordinated to the Obligations and (ii) no such permitted Indebtedness in respect of the convertible notes Senior Secured Credit Facilities, Senior Notes, New Senior Unsecured Notes and/or the Existing Loan Agreement (or backstop facilities in replacement thereof) (or in each case any Permitted Refinancing Indebtedness thereof) shall be Guaranteed by any Restricted Subsidiary unless such Restricted Subsidiary has Guaranteed the applicable Obligations pursuant to a Guaranty and (iii) such Guarantee Obligations shall be incurred in compliance with Section 6.15;
(xiv) Intercompany Indebtedness among the Company and its Restricted Subsidiaries in connection with effectuating the Transactions;
(xv) Indebtedness in respect of Hedging Agreements permitted by Section 6.21;
(xvi) Indebtedness among the Company and its Subsidiaries (including between or among Subsidiaries); provided that, any such Indebtedness owing by any Senior Secured Loan Party to any Subsidiary other than a Senior Secured Domestic Loan Party shall be unsecured;
(xvii) So long as no Default or Unmatured Default shall have occurred and be continuing, Indebtedness of the Company and the Guarantors if on a Pro Forma Basis after giving effect to the incurrence or assumption of such Indebtedness the Company’s Total Net Leverage Ratio is less than or equal to the Total Net Leverage Ratio applicable as of such date as set forth in Section 6.22 of the Senior Secured Credit Agreement less 0.25 to 1.00 (provided that if such ratio under Section 6.22 of the Senior Secured Credit Agreement is 4.00 to 1.00 or less no such reduction of 0.25 to 1.0 shall be made), recomputed as of the last day of the most recently ended fiscal quarter of the Company for which financial statements are available under 6.1(i) and (ii);
(xviii) Indebtedness of Foreign Subsidiaries in an aggregate principal amount not to exceed the greater of $100,000,000 and 2.5% of Total Tangible Assets as shown on or determined in accordance with the most recent financial statements of the Company delivered pursuant to Section 6.1(i) or (ii) outstanding at any time;
(xix) Indebtedness of the Company or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capitalized Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof (and not in contemplation thereof), and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; provided that (i) such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement and (ii) the aggregate principal amount of Indebtedness permitted by this clause shall not exceed $20,000,000 at any time outstanding;
(xx) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of incurrence;
(xxi) Indebtedness of the Target and its Restricted Subsidiaries permitted to survive the Acquisition or be incurred thereafter and prior to the Domination Agreement Effective Date under the terms of the Acquisition Documentation (and any Permitted Refinancing Indebtedness in respect thereof) not secured by assets of the Company or its Restricted Subsidiaries (other than the Target and its Subsidiaries) or guaranteed by the Company or its Restricted Subsidiaries (other than the Target and its Subsidiaries);
(xxii) Indebtedness consisting of Bi-lateral LC/WC Agreements in an aggregate maximum principal exposure amount at any one time up to $300,000,000 (it being agreed the maximum principal exposure amount in respect of Bi-lateral LC/WC Agreements constituting revolving loan credit facilities outstanding at any one time shall not exceed $50,000,000 (in each case, such cap limitations to be calculated exclusive of any bank guarantee or the like issued in connection with a squeeze-out of any minority shareholders of the Target (i) in accordance with Sec. 327b(3) of the German Stock Corporation Act (Aktiengesetz), (ii) in accordance with Sec. 62 of the German Transformation Act (Umwandlungsgesetz) in conjunction with 327b(3) of the German Stock Corporation Act (Aktiengesetz) or (iii) in relation to a squeeze-out pursuant to 39a and 39b of the German Takeover Code (Wertpapiererwerbs- und Übernahmegesetz)); and
(xxiii) Intercompany Indebtedness representing consideration for any intercompany Disposition permitted by Section 6.14(xviii). The accrual of interest, the accretion of accreted value, the payment of interest in the form of additional Indebtedness, the payment of dividends on Disqualified Equity Interests in the form of additional shares of Disqualified Equity Interests, accretion or amortization of original issue discount or liquidation preferences and increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the Exchange Rate or currencies will not be deemed to be an incurrence of Indebtedness for purposes of this Section 6.18. The principal amount of any non-interest bearing Indebtedness or other discount security constituting Indebtedness at any date shall be the principal amount thereof that would be shown on a consolidated balance sheet of the Company dated such date prepared in accordance with GAAP. This Agreement will not treat (1) unsecured and Indebtedness as subordinated or junior in right of payment to the secured Indebtedness merely because it is unsecured or (2) senior Indebtedness as subordinated or junior in right of payment in full (to any other than any payment as senior Indebtedness merely because it has a result of the conversion of such convertible notes into Equity Interests of Parent) junior priority with respect to the Obligations;
(l) other unsecured Indebtednesssame collateral. Further, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For for purposes of determining compliance with this Section 7.036.18, if an item of Indebtedness (or any portion thereof) meets the criteria of one or more of the categories of Indebtedness (or any portion thereof) permitted by this Section 6.18, the Company may, in its sole discretion, classify or divide (and reclassify and redivide) such item of Indebtedness (or any portion thereof) in any manner that complies with this Section 6.18 and will be entitled to only include the amount and type of such item of Indebtedness (or any portion thereof) in one of the above clauses (or any portion thereof) and such item of Indebtedness (or any portion thereof) shall be treated as having been incurred or existing pursuant to only such clause or clauses (or any portion thereof); provided, that all Obligations Indebtedness outstanding under the Loan Documents will this Agreement shall at all times be deemed to have been incurred in reliance only on the exception in pursuant to clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent6.18.
Appears in 2 contracts
Sources: Bridge Credit Agreement (Diebold Inc), Bridge Credit Agreement (Diebold Inc)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of the Loan Parties Indebtedness under the Loan Documents;
(b) Surviving Indebtedness outstanding on the Closing Date and listed on Schedule 7.03(b)7.02 and any refinancings, but not any extensionsrefundings, renewals or replacements extensions thereof; provided, that, the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable by an amount equal to the obligor thereon a reasonable premium or to the Lenders than the Indebtedness being refinanced or extendedother reasonable amount paid, and the average life to maturity thereof is greater than or fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to that of any existing commitments unutilized thereunder and the Indebtedness being refinanced direct or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an any contingent obligor with respect to the Indebtedness being extendedthereto is not changed, renewed as a result of or refinancedin connection with such refinancing, (B) exceed in a principal amount the Indebtedness being renewedrefunding, extended renewal or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromextension;
(c) Indebtedness with in respect to Capital Leases of Capitalized Leases, Synthetic Lease Obligations and purchase money obligations for fixed or capital assets within the limitations set forth in Section 7.01(i); provided, that, the aggregate amount of all such Indebtedness at any one time outstanding shall not exceed $15,000,000;
(d) intercompany Indebtedness arising from advances permitted under Section 7.03 (“Intercompany Debt”); provided, that, in the case of Indebtedness owing by a Loan Party to a Subsidiary that is not a Loan Party (i) such Indebtedness shall be subordinated prior to the Secured Obligations in a manner and to an extent reasonably acceptable to the Administrative Agent and (ii) such Indebtedness shall not be prepaid unless no Default exists immediately prior to or after giving effect to such prepayment;
(e) Guarantees in respect of Indebtedness otherwise permitted under this Section 7.02;
(f) Indebtedness of any Person that becomes a Subsidiary after the Closing Date in a transaction permitted hereunder in an aggregate principal amount not to exceed $1,000,000 in the aggregate at any time outstanding5,000,000; provided that any provided, that, such Indebtedness (x) is existing at the time such Person becomes a Subsidiary and was not incurred solely in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence contemplation of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such assetPerson’s becoming a Subsidiary;
(dg) the SBA PPP Loan;
obligations (econtingent or otherwise) Indebtedness in respect of existing or arising under any Swap Contracts designed to hedge against interest ratesContract, foreign exchange rates provided, that, (i) such obligations are (or commodities pricing risks incurred were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with fluctuations in interest rates or foreign exchange rates and (ii) such Swap Contract does not for speculative purposes;
(f) Indebtedness incurred by contain any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in provision exonerating the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or selfnon-insurance or other Indebtedness with respect defaulting party from its obligation to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable make payments on outstanding transactions to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPdefaulting party;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection evidenced by any Loan Party the Note Agreements in an aggregate principal amount not to exceed C$24,180,908; provided, that, such Indebtedness is subject to the ordinary course of businessIntercreditor Agreement;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02under Secured Cash Management Agreements; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;and
(j) other unsecured Indebtedness (other than for borrowed money) that may be deemed not contemplated by the above provisions in an aggregate principal amount not to exist pursuant to exceed $5,000,000 at any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have time outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.
Appears in 2 contracts
Sources: Credit Agreement (Radiant Logistics, Inc), Credit Agreement (Radiant Logistics, Inc)
Indebtedness. CreateThe Borrower will not, and will not permit any of the Restricted Subsidiaries to, contract, create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(ai) Obligations of Indebtedness incurred pursuant to this Agreement and the Loan Parties under the Loan other Credit Documents;
(bii) Surviving Existing Indebtedness outstanding on the Closing Date and listed on Schedule 7.03(b6.04 (as reduced by any permanent repayments of principal thereof) and, in each case, any subsequent extension, renewal or refinancing thereof, provided that the aggregate principal amount of the Indebtedness to be extended, renewed or refinanced does not increase from that amount outstanding (or, in the case of a revolving line of credit, the amount committed on the Closing Date (as reduced by any permanent commitment reductions thereunder)) at the time of any such extension, but not any extensionsrenewal or refinancing, renewals or replacements and neither the final maturity nor the Weighted Average Life to Maturity of such Indebtedness except (i) renewals and extensions expressly provided for in is decreased, such Indebtedness, if subordinated to the agreements evidencing any such Indebtedness as the same are in effect Obligations, remains so subordinated on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not no less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extendedLenders, and the average life to maturity thereof is greater than or equal to that original obligors in respect of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under remain the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromonly obligors thereon;
(ciii) Indebtedness with respect to Capital Leases of the Borrower and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in Restricted Subsidiaries under Interest Rate Protection Agreements or Other Hedging Agreements, so long as the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence entering into of such Indebtedness, as the case may be, Interest Rate Protection Agreements or Other Hedging Agreements are bona fide hedging activities and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and are not for speculative purposes;
(fiv) Indebtedness of the Borrower and the Restricted Subsidiaries evidenced by Capitalized Lease Obligations and purchase money Indebtedness described in Section 6.01(vii), provided that in no event shall the sum of the aggregate principal amount of all Capitalized Lease Obligations and purchase money Indebtedness permitted by this clause (iv) exceed $25,000,000 at any time outstanding;
(v) Indebtedness constituting Intercompany Loans to the extent permitted by Section 6.05(viii);
(vi) Indebtedness consisting of guaranties or other Contingent Obligations (x) by the Borrower and the Wholly-Owned Restricted Subsidiaries that are Subsidiary Guarantors of each other’s Indebtedness and other obligations permitted under this Agreement (other than guaranties of Non-Recourse Indebtedness, Permitted Funding Indebtedness or any Indebtedness permitted under Section 6.04(xvii); provided that the Borrower (but no other Credit Party) may, on an unsecured basis, guarantee the Permitted Funding Indebtedness of a Subsidiary Guarantor), (y) by Wholly-Owned Restricted Subsidiaries that are not Credit Parties of each other’s Indebtedness or other contractual obligations permitted under this Agreement (in each case other than guaranties of Non-Recourse Indebtedness or Securitization Indebtedness) and (z) of Indebtedness and other obligations (including any Permitted Funding Indebtedness) so long as such guaranty or other Contingent Obligation is otherwise permitted as an Investment under Section 6.05 (other than Section 6.05(xi));
(vii) Indebtedness of a Restricted Subsidiary acquired pursuant to a Permitted Acquisition (or Indebtedness assumed at the time of a Permitted Acquisition of an asset securing such Indebtedness), provided that (x) such Indebtedness was not incurred in connection with, or in anticipation or contemplation of, such Permitted Acquisition, (y) such Indebtedness is not guaranteed in any respect by the Borrower or any Loan Party in respect Restricted Subsidiary (other than any acquired Person that becomes a Restricted Subsidiary) and (z) the aggregate principal amount of letters all Indebtedness permitted by this clause (vii) (other than Permitted Funding Indebtedness) shall not exceed $50,000,000;
(viii) Indebtedness arising from the honoring by a bank or other financial institution of credita check, bank guarantees, bankers’ acceptances, warehouse receipts draft or similar instruments issued or created instrument drawn against insufficient funds in the ordinary course of business, including in respect so long as such Indebtedness is extinguished within three Business Days of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other its incurrence;
(ix) Indebtedness of the Borrower and the Restricted Subsidiaries with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred performance bonds, surety bonds, appeal bonds or customs bonds required in the ordinary course of business or in accordance connection with customary terms and paid within the specified time, unless contested enforcement of rights or claims of the Borrower or any Restricted Subsidiary or in good faith by appropriate proceedings and reserved for substantially connection with judgments that do not result in accordance with GAAPa Default or an Event of Default;
(hx) Indebtedness consisting of guarantees resulting from endorsement the Borrower or any Restricted Subsidiary which may be deemed to exist in connection with customary agreements providing for indemnification, purchase price adjustments and similar obligations in connection with the acquisition or disposition of negotiable instruments for collection assets in connection with transactions otherwise permitted hereunder, so long as any such obligations are those of the Person making the respective acquisition or sale, and are not guaranteed by any Loan Party other Person except as permitted by Section 6.04(vi);
(xi) Permitted Funding Indebtedness;
(xii) Non-Recourse Indebtedness;
(xiii) to the extent constituting Indebtedness, Indebtedness under Excess Spread Sales incurred in the ordinary course of business;
(iA) Indebtedness of (i) the Borrower or any Loan Party owing Restricted Subsidiary which may be deemed to exist pursuant to earn-out arrangements upon the achievement of certain future performance goals of the respective Acquired Entity in connection with Permitted Acquisitions, so long as any such obligations are those of the Person making the respective Permitted Acquisition and are not guaranteed by any other Loan Party and (iiPerson except as permitted by Section 6.04(vi) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such any Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes Borrower or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that Restricted Subsidiary which may be deemed to exist pursuant to any bona fide warranty deferred purchase price, installment payment or contractual service obligations similar arrangement in connection with the purchase of MSR, Servicing Advances, REO Assets, servicing rights, Residual Interests Excess Spreads, residential or performance commercial mortgage loans or Securitization Assets, provided such Indebtedness is on terms consistent with standards acceptable to the industry;
(xv) [reserved];
(xvi) [reserved];
(xvii) Indebtedness of any Restricted Subsidiary that is a general partner of a Permitted Fund solely as a result of such Restricted Subsidiary being a general partner of a Permitted Fund but only so long as such Restricted Subsidiary is in compliance with Section 6.13;
(xviii) Permitted Securitization Indebtedness and Indebtedness under Credit Enhancement Agreements, in each case incurred in the ordinary course of business of the Loan Partiesbusiness;
(kxix) so long as no Default or Event of Default then exists or would result therefrom, additional unsecured Indebtedness incurred by the Borrower and the Restricted Subsidiaries (other than a Non-Recourse Entity) in an aggregate principal amount not to exceed $50,000,000 at any one time outstanding;
(xx) Indebtedness consisting of undrawn letters of credit and reimbursement obligations with respect to letters of credit issued for the benefit of the Borrower or any Restricted Subsidiary; provided that the aggregate face amount of all such letters of credit at any time outstanding shall not exceed L/C Cap;
(xxi) Permitted External Refinancing Debt of any Credit Party, and any Permitted Refinancing thereof; and
(xxii) Indebtedness of the Credit Parties in respect of the convertible notes; provided that, all such Indebtedness Second Lien Senior Subordinated PIK Toggle Notes in respect an aggregate principal amount of up to $250,000,000 plus the convertible notes shall be unsecured and subordinated amount of any increase in right of payment to the payment in full (other than any payment outstanding principal amount thereof as a result of the conversion issuance of such convertible notes into Equity Interests of ParentPIK Interest (as defined in the Second Lien Senior Subordinated PIK Toggle Notes Indenture) to the Obligations;
(l) other unsecured Indebtednessin connection therewith, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03each case, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have at any time outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee less the aggregate amount of any Loan Party unless such Indebtedness is expressly permitted hereunder principal payments made thereon (other than in connection with a Permitted Refinancing thereof), and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentany Permitted Refinancing thereof.
Appears in 2 contracts
Sources: Credit Agreement (Walter Investment Management Corp), Credit Agreement (Walter Investment Management Corp)
Indebtedness. CreateHoldings will not, and will not permit any of its Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of the Loan Parties under Indebtedness created pursuant to the Loan Documents;
(b) Surviving Indebtedness listed existing on the date hereof and set forth on Schedule 7.03(b), but not any 7.1 and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (immediately prior to giving effect to such extension, renewal or replacement) or shorten the maturity or the weighted average life thereof;
(c) Indebtedness of the Borrower or any Restricted Subsidiary incurred after the Effective Date to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof; provided, that such Indebtedness is incurred prior to or within ninety (90) days after such acquisition or the completion of such construction or improvements or extensions, renewals, and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof (immediately prior to giving effect to such extension, renewal or replacement) or shorten the maturity or the weighted average life thereof; provided further, (x) the aggregate principal amount of such Indebtedness, as of any date of determination, does not at any time exceed three percent (3.0%) of the aggregate book value of the total assets of Holdings, the Borrower and its Restricted Subsidiaries determined on a consolidated basis as of the last day of the most recently ended Fiscal Quarter for which financial statements have been delivered, and (y) the aggregate principal amount of such Indebtedness except incurred by Foreign Subsidiaries under this Section 7.1(c), together with the principal amount of Indebtedness permitted to be incurred under Section 7.1(i) does not exceed twenty percent (20%) of the aggregate book value of the total assets of Holdings, the Borrower and its Restricted Subsidiaries measured on a consolidated basis in accordance with GAAP as of the end of the immediately preceding Fiscal Quarter for which financial statements have been delivered (giving effect to any Acquisition financed with such Indebtedness on a Pro Forma Basis);
(d) Indebtedness of the Borrower owing to any Restricted Subsidiary that is a Loan Party and of any Restricted Subsidiary that is a Loan Party owing to the Borrower or any other Restricted Subsidiary that is a Loan Party;
(e) Guarantees by the Borrower of Indebtedness of any Restricted Subsidiary of the Borrower that is a Loan Party and by any Restricted Subsidiary of the Borrower that is a Loan Party of Indebtedness of the Borrower or any other Restricted Subsidiary of the Borrower that is a Loan Party;
(f) Guarantees by the Borrower of Indebtedness of certain franchise operators of the Borrower; provided such guarantees are given by the Borrower in connection with (i) renewals loans made pursuant to the terms of the Loan Facility Agreement or (ii) loans made pursuant to terms of any other loan facility agreements and extensions expressly provided guaranteed on an unsecured basis with terms otherwise reasonably acceptable to the Administrative Agent entered into after the date hereof in an aggregate principal amount at any time outstanding not to exceed, as of any date of determination, three percent (3.0%) of the aggregate book value of the total assets of Holdings, the Borrower and its Restricted Subsidiaries determined on a consolidated basis as of the last day of the most recently ended Fiscal Quarter for which financial statements have been delivered;
(g) endorsed negotiable instruments for collection in the agreements evidencing any ordinary course of business;
(h) Guarantees by Borrower of permitted Indebtedness of Foreign Subsidiaries that are Restricted Subsidiaries;
(i) unsecured Indebtedness of Foreign Subsidiaries that are Restricted Subsidiaries (whether such Indebtedness represents loans made by the Borrower or any of its Restricted Subsidiaries or by a third party) so long as (i) after giving effect to the same incurrence of such Indebtedness on a Pro Forma Basis (as evidenced by a Pro Forma Compliance Certificate delivered to the Administrative Agent), (A) Holdings, the Borrower and its Restricted Subsidiaries would be in compliance with the financial covenants in Article VI measured as of the last day of the most recently ended Fiscal Quarter for which financial statements are required to have been delivered hereunder, (B) no Default or Event of Default has occurred and is continuing, or would result therefrom and (C) the aggregate principal amount of such Indebtedness, together with the amount of and Indebtedness permitted to be incurred by such Foreign Subsidiaries under Section 7.1(c), does not exceed twenty percent (20%) of the aggregate book value of the total assets of Holdings, the Borrower and its Restricted Subsidiaries measured on a consolidated basis in accordance with GAAP as of the end of the immediately preceding Fiscal Quarter for which financial statements have been delivered (giving effect to any Acquisition financed with such Indebtedness on the date of this Agreement a Pro Forma Basis) and (ii) refinancings and extensions (A) the terms of any such Indebtedness if do not provide for any scheduled repayment (including payment at maturity), mandatory redemption or sinking fund obligations (other than customary mandatory prepayments upon a change of control, asset sale, event of loss, unpermitted debt issuance and customary acceleration rights after an event of default) prior to the date that is 91 days after the Revolving Commitment Termination Date and the latest Maturity Date in effect at the time of the incurrence or issuance of such Indebtedness; (B) the covenants, events of default, guarantees and other non-economic terms and of such Indebtedness are either (1) customary for similar Indebtedness in light of then-prevailing market conditions thereof (as reasonably determined by the Borrower) or (2) reasonably satisfactory to the Administrative Agent, (C) any financial maintenance covenants with respect to such Indebtedness are not less favorable more restrictive to Holdings and its Restricted Subsidiaries than those set forth in this Agreement; and (D) such Indebtedness shall not be Guaranteed by any Person that is not a Loan Party (or that does not simultaneously become a Loan Party);
(j) secured Indebtedness in an aggregate principal amount not to exceed the greater of (i) $15,000,000 and (ii) ten percent (10%) of Consolidated EBITDA for the period of four (4) Fiscal Quarters most recently ended prior to the obligor thereon date of determination for which financial statements were delivered under Section 5.1(a) or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended(b); provided, such Indebtedness permitted under the immediately preceding clause that, (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any no Default or Event of Default has occurred and is continuing or would result therefrom;
, (cii) Indebtedness after giving effect to the incurrence thereof on a Pro Forma Basis (as evidenced by delivery of a Pro Forma Compliance Certificate to the Administrative Agent), Holdings, the Borrower and its Restricted Subsidiaries would be in compliance with respect the financial covenants in Article VI measured as of the last day of the most recently ended Fiscal Quarter for which financial statements are required to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in have been delivered hereunder, (iii) the aggregate at any time outstanding; provided that any terms of such Indebtedness do not provide for any scheduled repayment (xincluding payment at maturity), mandatory redemption or sinking fund obligations (other than customary mandatory prepayments upon a change of control, asset sale, event of loss, unpermitted debt issuance and customary acceleration rights after an event of default) prior to the date that is 91 days after the Revolving Commitment Termination Date and the latest Maturity Date in effect at the case time of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence or issuance of such Indebtedness, as the case may be, and ; (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(div) the SBA PPP Loan;
(e) Indebtedness in respect covenants, events of Swap Contracts designed to hedge against interest ratesdefault, foreign exchange rates or commodities pricing risks incurred in the ordinary course guarantees and other non-economic terms of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case are either (A) all such customary for similar Indebtedness shall be evidenced in light of then-prevailing market conditions (as reasonably determined by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and Borrower) or (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent, (v) any financial maintenance covenants with respect to such Indebtedness are not more restrictive to Holdings and its Restricted Subsidiaries than those set forth in this Agreement; (vi) such Indebtedness shall not be Guaranteed by any Person that is not a Loan Party (or that does not simultaneously become a Loan Party); and (vii) such Indebtedness shall not include any restriction on the ability of Holdings and its Restricted Subsidiaries to grant Liens in favor of the Administrative Agent in accordance with the terms hereof; and
(k) any other unsecured Indebtedness of Holdings, the Borrower or any Restricted Subsidiary that is a Loan Party so long as after giving effect to the incurrence of such Indebtedness on a Pro Forma Basis (as evidenced by delivery of a Pro Forma Compliance Certificate to the Administrative Agent), (i) Holdings, the Borrower and its Restricted Subsidiaries would be in compliance with the financial covenants in Article VI measured as of the last day of the most recently ended Fiscal Quarter for which financial statements are required to have been delivered hereunder, (ii) no Default or Event of Default has occurred and is continuing, or would result therefrom, (iii) the terms of such Indebtedness do not provide for any scheduled repayment (including payment at maturity), mandatory redemption or sinking fund obligations (other than customary mandatory prepayments upon a change of control, asset sale, event of loss, unpermitted debt issuance and customary acceleration rights after an event of default) prior to the date that is 91 days after the Revolving Commitment Termination Date and the latest Maturity Date in effect at the time of the incurrence or issuance of such Indebtedness; (iv) the covenants, events of default, guarantees and other non-economic terms of such Indebtedness are either (A) customary for similar Indebtedness in light of then-prevailing market conditions (as reasonably determined by the Borrower) or (B) reasonably satisfactory to the Administrative Agent, (v) any financial maintenance covenants with respect to such Indebtedness are not more restrictive to Holdings and its Restricted Subsidiaries than those set forth in this Agreement; and (vi) such Indebtedness shall not be Guaranteed by any Person that is not a Loan Party (or that does not simultaneously become a Loan Party).
Appears in 2 contracts
Sources: Credit Agreement (Aaron's Company, Inc.), Credit Agreement (Aaron's Company, Inc.)
Indebtedness. CreateThe Loan Parties will not permit any Consolidated Party to contract, create, incur, assume or suffer permit to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of Indebtedness arising under this Agreement and the Loan Parties under the other Loan Documents;
(b) Surviving Indebtedness listed on of the Borrowers and their Subsidiaries set forth in Schedule 7.03(b)7.01 (and renewals, but not any extensions, renewals or replacements refinancings and extensions thereof; provided that (x) the amount of such Indebtedness except is not increased at the time of such renewal, refinancing or extension, (iy) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof of such renewal, refinancing or extension are materially not less favorable to such Borrowers or Subsidiary, taken as a whole and (z) the obligor thereon maturity date of such renewal, refinancing or to extension shall be a date after the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromMaturity Date);
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness (including obligations in an amount respect of Capital Leases or Synthetic Lease Obligations) hereafter incurred by the Borrowers or any of its Subsidiaries to finance the purchase of fixed assets provided that (i) the total of all such Indebtedness for all such Persons taken together along with all Indebtedness incurred pursuant to Section 7.01(i) shall not to exceed $1,000,000 in the aggregate 150,000,000 at any one time outstanding; provided that any (ii) such Indebtedness when incurred shall not exceed the purchase price of the asset(s) financed; and (xiii) in the case of additional Capital Leases or purchase money Indebtedness, no such Indebtedness shall be secured by refinanced for a principal amount in excess of the asset subject to such additional Capital Leases or acquired asset in connection with principal balance outstanding thereon at the incurrence time of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such assetrefinancing;
(d) obligations (contingent or otherwise) of the SBA PPP Loan;
Borrowers or any Subsidiary existing or arising under any Swap Contracts, provided that such obligations are (eor were) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with purchases, sales, liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for speculative purposespurposes of speculation or taking a “market view;
(e) intercompany Indebtedness and Guarantees permitted under Section 7.06;
(f) in addition to the Indebtedness otherwise permitted by this Section 7.01, other Indebtedness incurred by the Borrowers or any Loan Party in respect of letters of credittheir Subsidiaries after the Closing Date, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
provided that (i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment (ii) the Borrowers shall have delivered to the payment in full of the Obligations pursuant Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to the terms incurrence of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory Indebtedness and to the Collateral Agentconcurrent retirement of any other Indebtedness of any Consolidated Party, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.10(a)-(b);
(jg) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties[reserved];
(kh) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date[reserved]; and
(mi) in addition to the Indebtedness otherwise permitted by this Section 7.01, other secured Indebtedness incurred by the Borrowers or any of their Subsidiaries after the Closing Date, provided that (i) the 2021 Preferred Stock on terms reasonably acceptable Borrowers shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to the incurrence of such Indebtedness and to the concurrent retirement of any other Indebtedness of any Consolidated Party, the Loan Parties would be in its sole discretion. For purposes of determining compliance with this the financial covenants set forth in Section 7.03, 6.10(a) and (b) and (ii) the aggregate principal amount of all Obligations outstanding under the Loan Documents will be deemed secured Indebtedness taken together along with all Indebtedness pursuant to have been incurred in reliance only on the exception in clause (aSection 7.01(c) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentnot exceed $150,000,000.
Appears in 2 contracts
Sources: Credit Agreement (Potlatchdeltic Corp), Credit Agreement (Potlatchdeltic Corp)
Indebtedness. Create(i) Neither Holdings, incurexcept with respect to subsections (a) and (e) below, assume (ii) nor Borrower, nor any of Borrower’s Subsidiaries, will create, incur or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of the Loan Parties under the Loan DocumentsObligations;
(b) Surviving Indebtedness listed existing on the date hereof and described in Schedule 7.03(b5.22;
(c) subject to subsection (k) of this Section 6.17, purchase money Indebtedness incurred in connection with the purchase of any Equipment (other than Compression Units or Inventory); provided that, but the amount of such purchase money Indebtedness shall be limited to an amount not in excess of the purchase price of such Equipment;
(d) Indebtedness which represents an extension, refinancing, or renewal of any extensionsof the Indebtedness described in clauses (b) and (c) hereof; provided that, renewals (i) the principal amount or replacements interest rate of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and is not increased, (ii) refinancings and extensions any Liens securing such Indebtedness are not extended to any additional Property of any Loan Party, (iii) no Loan Party that is not originally obligated with respect to repayment of such Indebtedness is required to become obligated with respect thereto, (iv) such extension, refinancing or renewal does not result in a shortening of the average weighted maturity of the Indebtedness so extended, refinanced or renewed, (v) the terms of any such Indebtedness if the terms and conditions thereof extension, refinancing, or renewal are not less favorable to the obligor thereon thereunder than the original terms of such Indebtedness and (iv) if the Indebtedness that is refinanced, renewed, or extended was subordinated in right of payment to the Lenders than Obligations, then the terms and conditions of the refinancing, renewal, or extension Indebtedness being refinanced or extended, must include subordination terms and conditions that are at least as favorable to the Agent and the average life to maturity thereof is greater than or equal to Lenders as those that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect were applicable to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, or extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness owing by any Loan Party to any other Loan Party with respect to intercompany loans, provided further, that:
(i) the applicable Loan Parties shall have executed on the Original Closing Date, a demand note (collectively, the “Intercompany Notes”) to evidence any such intercompany Indebtedness owing at any time by any Loan Party to another Loan Party, which Intercompany Notes shall be in respect form and substance reasonably satisfactory to the Agent and shall be pledged and delivered to the Agent pursuant to the Security Agreement as additional collateral security for the Secured Obligations;
(ii) the Borrower shall record all intercompany transactions on its books and records in a manner reasonably satisfactory to the Agent;
(iii) the obligations of Swap Contracts designed the Borrower under any such Intercompany Notes shall be subordinated to hedge against interest ratesthe Obligations of the Borrower hereunder in a manner reasonably satisfactory to the Agent;
(iv) at the time any such intercompany loan or advance is made by the Borrower and after giving effect thereto, foreign exchange rates the Borrower shall be Solvent; and
(v) no Default or commodities pricing risks incurred in the ordinary course of business Unmatured Default would occur and not for speculative purposes;be continuing after giving effect to any such proposed intercompany loan.
(f) Indebtedness incurred Contingent Obligations (i) by any Loan Party in respect endorsement of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts instruments for deposit or similar instruments issued or created collection in the ordinary course of business, including (ii) consisting of the Reimbursements Obligations and (iii) consisting of the Guaranty and guarantees of Indebtedness incurred for the benefit of any other Loan Party if the primary obligation is expressly permitted elsewhere in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsthis Section 6.17;
(g) Indebtedness incurred by any Loan Party in respect Subject to subsection (k) of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified timethis Section 6.17, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPCapitalized Lease Obligations;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business[Reserved];
(i) Indebtedness arising under Rate Management Transactions having an aggregate notional amount not exceeding fifty percent (50%) of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary the Aggregate Commitment, provided that such Rate Management Transaction is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness with an Affiliate of Borrower and is permitted as made on an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agentarm’s-length basis;
(j) Other unsecured Indebtedness issued by a Loan Party or any of its Subsidiaries; provided that, (i) immediately prior to and after giving effect to the issuance of such Indebtedness, there would be no Default under this Agreement, (ii) such Indebtedness’ scheduled maturity is no earlier than twelve (12) months after the Facility Termination Date, (iii) such Indebtedness does not require any scheduled repayments, defeasance or redemption (or sinking fund therefor) of any principal amount thereof prior to maturity, and (iv) the indenture or other agreement governing such Indebtedness shall not contain (A) maintenance financial covenants or (B) other terms and conditions that which taken as a whole are materially more restrictive on the Borrower or any of its Subsidiaries than then available market terms and conditions for borrowed money) comparable issuers and issuances, and any refinancings, refundings, renewals or extensions thereof or this Facility; provided that may be deemed to exist pursuant to any bona fide warranty the terms of such refinancing, refunding, renewing, or contractual service obligations or performance in extending Indebtedness satisfy the ordinary course requirements of business of the Loan Parties;this Section 6.17(j).
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary hereinin subsections (c) and (g) of this Section 6.17, no Loan Party the aggregate outstanding debt with respect to purchase money Indebtedness, as provided in subsection (c) of this Section 6.17 and Capitalized Lease Obligations Indebtedness, as provided for pursuant to subsection (g) of this Section 6.17 shall have outstanding, create or incur not in the aggregate exceed $7,500,000 outstanding at any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentone time.
Appears in 2 contracts
Sources: Credit Agreement (USA Compression Partners, LP), Credit Agreement
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations Indebtedness of the Borrower to the Administrative Agent or the Lenders under any Loan Parties under the Loan DocumentsDocument;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors and accrued expenses for goods and services and current normal recurring operating liabilities (not the result items, other than for borrowed money, of the borrowing of money) Borrower and its Subsidiaries incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(ic) Indebtedness of the Borrower and Subsidiaries of the Borrower, provided, however, that no Subsidiary shall create, incur, assume or suffer to exist any liability for Indebtedness except Indebtedness which, when aggregated with all Indebtedness of all Subsidiaries of the Borrower (but not including, for purposes of this calculation, Indebtedness of a Subsidiary owing to the Borrower or another Subsidiary of the Borrower), does not exceed 20% of the Consolidated Tangible Net Worth of the Borrower and its Subsidiaries; and also provided that the material terms of all Indebtedness permitted under this paragraph are no more restrictive with respect to covenants and events of default or other material provisions than the terms and conditions set forth herein and in the other Loan Documents, and provided further that, at the time any such Indebtedness is incurred, and after giving effect thereto, no Default or Event of Default exists (it being agreed that upon the incurrence of any such Indebtedness in excess of $100,000,000 in one or a series of transactions, the Borrower will furnish to the Administrative Agent a Compliance Certificate demonstrating compliance with this Section 7.01 and Section 7.04 after giving effect to such Indebtedness); and
(d) Indebtedness existing on the date of this Agreement and disclosed on Schedule 7.01 hereto and any refinancings, refundings, renewals or extensions thereof; provided that (i) any Loan Party owing the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any other Loan Party existing commitments unutilized thereunder, and (ii) Indebtedness owed by the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a Subsidiary that is not a Guarantor Subsidiary to whole, of any Loan Party such refinancing, refunding, renewing or extending Indebtedness, and of any agreement entered into and of any instrument issued in connection therewith, are no less favorable in any material respect to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to Borrower or the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, refunded, renewed or extended and the interest rate applicable promissory notes or an intercompany subordination agreement that in to any such caserefinancing, is reasonably satisfactory to refunding, renewing or extending Indebtedness does not exceed the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentthen applicable market interest rate.
Appears in 2 contracts
Sources: Credit Agreement (Ross Stores, Inc.), Credit Agreement (Ross Stores, Inc.)
Indebtedness. CreateWithout Bank’s prior written consent, incur, assume or suffer to exist Guarantor will not incur any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):
(a) Obligations of the Loan Parties under the Loan Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except other than: (i) renewals the Additional Beacon Noteholder Subordinated Debt, the December 2011 Beacon Noteholder Subordinated Debt, and extensions expressly provided for in the agreements evidencing any such other Indebtedness as the same are in effect set forth on the date of this Agreement and Schedule I; (ii) refinancings and extensions of any such the Guaranteed Obligations; (iii) Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinancedwhich is unsecured, (B) exceed in a principal amount the Indebtedness being renewedwhich is not for borrowed money, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default which has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks been incurred in the ordinary course of business Guarantor’s or its Subsidiaries’ business, (D) which is not otherwise prohibited under any provision of this Guaranty, and (E) the nonpayment of or other default under which would not for speculative purposes;
have a Material Adverse Effect; (fiv) Indebtedness incurred by any Loan Party in respect of taxes, assessments or governmental charges to the extent that payment thereof shall not at the time be required to be made; (v) Indebtedness in respect of judgments or awards which (1) have been vacated, discharged or stayed within 10 days of the entry thereof or have been in force for less than the applicable appeal period so long as execution is not levied thereunder (or in respect of which (A) Guarantor shall at the time in good faith be prosecuting an appeal or proceedings for review and (B) a stay of execution shall have been obtained pending such appeal or review), and (2) (A) are not, in the aggregate, in an amount in excess of $100,000 (and individually in excess of $50,000) of any available insurance coverage, as determined by Bank in its discretion exercised in good faith, in effect to satisfy such judgments or award for which the insurer has admitted in writing its liability for the full amount thereof and (B) do not have a Material Adverse Effect (regardless of monetary amount or insurance coverage); (vi) Indebtedness under capitalized leases or purchase money financing if (1) such Indebtedness is not secured by any of the Loan Collateral other than the property so acquired and any identifiable proceeds, (2) any Liens relating to such Indebtedness do not extend to or cover any property of Guarantor other than the property so acquired and any identifiable proceeds therefrom, (3) the principal amount of such capitalized lease or purchase money Indebtedness will not, at the time of the incurrence thereof, exceed the value of the property so acquired; and (4) the total amount of such Indebtedness during any period does not exceed $300,000 for Guarantor in any fiscal year; and (vii) Indebtedness representing reimbursement obligations and other liabilities of Guarantor with respect to surety bonds (whether payment, performance or otherwise), letters of credit, bank guarantees, bankers’ banker’s acceptances, warehouse receipts drafts or similar documents or instruments issued or created for Guarantor’s account in the ordinary course of Guarantor’s business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (Athat no Indebtedness otherwise permitted under this Section 3.2(a) all such Indebtedness to be incurred shall be evidenced by promissory notes and all such notes shall permitted to be subject to a first priority Lien pursuant incurred if, after giving effect to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right incurrence thereof, any Event of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party Default shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder occurred and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentbe continuing.
Appears in 2 contracts
Sources: Guaranty (EQM Technologies & Energy, Inc.), Guaranty (EQM Technologies & Energy, Inc.)
Indebtedness. Create, incur, assume or suffer to exist exist, or ------------ otherwisebecome or be liable in respect of any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):Indebtedness except:
(a1) Obligations of the Loan Parties under the Loan DocumentsThe Obligations;
(b2) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals Trade debt or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks accounts payable incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including paid within sixty (60) days after the same has become due and payable or which is being contested in respect good faith, provided provision is made to the reasonable satisfaction of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsthe Administrative Agent for the eventual payment thereof in the event it is found that such contested trade debt is payable by the Companies;
(g3) Indebtedness secured by Liens permitted under Paragraph 12(a) above;
(4) Indebtedness which is unsecured;
(5) Indebtedness incurred by any Loan Party in respect of accounts payable pursuant to trade creditors for goods repurchase and services and current operating liabilities (not gestation financing agreements, whether such Indebtedness is shown on the result books of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPCompanies as a sale or as a financing;
(h6) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection which is by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and its terms subordinated in right of payment to the payment Obligations and which is evidenced by instruments and agreements in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is form and content reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent;
(7) Indebtedness attributable to collateralized mortgage obligations of the Companies or any Affiliate thereof;
(8) Indebtedness incurred pursuant to additional financing secured by Construction Loans of the type which serve as Collateral for the Tranche D Facility; provided, however, that the Companies may not enter -------- ------- into any such financing arrangement, nor incur additional outstanding Indebtedness under any such existing financing arrangement, at any time when the amount of availability under the Tranche D Facility equals or exceeds the amount of additional Indebtedness sought to be incurred;
(9) Permitted Other Debt; and
(10) Indebtedness not specifically referred to above but reflected in the financial statements referred to in Paragraph 12(a) above, and extensions, renewals, and refinancings of such Indebtedness.
Appears in 2 contracts
Sources: Credit Agreement (CWM Mortgage Holdings Inc), Credit Agreement (CWM Mortgage Holdings Inc)
Indebtedness. CreateThe Borrower will not, and will not permit any of its Subsidiaries to, create, agree to create, incur, assume or assume, guarantee, suffer to exist exist, or remain directly or indirectly liable in respect of any Indebtedness, Indebtedness except for the following, without duplication (which constitutes “Permitted Indebtedness”)::
(a) Obligations of the Loan Parties under the Loan DocumentsIndebtedness hereunder;
(b) Surviving Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts in the ordinary course of business;
(c) Indebtedness in existence on the date hereof listed on in Schedule 7.03(b)6.21, but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement hereof, and (ii) refinancings and extensions of any such Indebtedness by the obligor thereof if the terms and conditions maturity thereof are not less favorable to is later than or the obligor thereon or to the Lenders than the Indebtedness being refinanced or extendedsame as, and the average life to maturity thereof is greater than or equal to to, that of the Indebtedness being refinanced or extendedextended and otherwise on prevailing market terms for similar types of Indebtedness at the time of such refinancing or extension; provided, provided that such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount (including any principal constituting interest paid in kind) the Indebtedness being renewed, extended or refinancedrefinanced plus accrued interest, fees and premiums (if any) thereon and reasonable fees and expenses associated with the refinancing or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(cd) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% Contingent Obligations of the aggregate consideration paid with Borrower in respect to such asset;
(d) the SBA PPP Loanof Indebtedness otherwise permitted under this Section 8.1;
(e) Indebtedness arising in respect connection with endorsement of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not instruments for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created deposit in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;; and
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(if) Indebtedness of (i) any Loan Party Subsidiary owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02Borrower; provided, that, in each case (A) all that such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and Indebtedness hereunder on terms satisfactory to the Administrative AgentAgent and shall not be prepaid, repaid, redeemed or repurchased prior to the Maturity Date.
Appears in 2 contracts
Sources: Loan Agreement, Senior Secured Loan Agreement (PCT LLC)
Indebtedness. CreateThe Borrower will not, and will not permit any of its Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations Indebtedness of the Loan Parties under Borrower created pursuant to the Loan Documents;
(b) Surviving Indebtedness listed existing on the date hereof and set forth on Schedule 7.03(b), but not any 7.1 and extensions, renewals or and replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if that do not increase the terms and conditions outstanding principal amount thereof are not less favorable (immediately prior to giving effect to such extension, renewal or replacement) or shorten the obligor thereon maturity or to the Lenders than the Indebtedness being refinanced or extended, and the weighted average life thereof to maturity thereof a date that is greater less than or equal to that of 180 days after the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromMaturity Date;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Permitted Financial Institution Subsidiary Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness owed by the Borrower or any “affiliate” of the Borrower (ias defined in Regulation W of the FRB and sections 23A and 23B of the Federal Reserve Act) any Loan Party owing to any other Loan Party and Financial Institution Subsidiary not in violation of Regulation W of the FRB (as amended, supplemented or otherwise modified) or (ii) Indebtedness owed by a Subsidiary that is not a Guarantor any Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral AgentBorrower;
(je) unsecured Indebtedness (other than for borrowed money) that may be deemed Purchase money indebtedness and Capitalized Lease Obligations secured by Liens permitted under this Agreement in an aggregate amount outstanding at any time not to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Partiesexceed $5,000,000;
(kf) Indebtedness Hedging Obligations in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity DateHedging Transactions permitted by Section 7.8; and
(mg) Other unsecured Indebtedness, so long as, before and after giving pro forma effect to incurrence of such Indebtedness, the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent Borrower and each Financial Institution Subsidiary shall be in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent6.1 hereof.
Appears in 2 contracts
Sources: Credit Agreement (United Community Banks Inc), Credit Agreement (United Community Banks Inc)
Indebtedness. CreateThe Borrower will not, directly or indirectly, create, incur, assume assume, guaranty, or suffer to exist otherwise become or remain directly or indirectly liable with respect to, any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations Indebtedness of the Loan Parties Borrower under the Loan Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements that is subordinated to the Obligations of such Indebtedness except (i) renewals and extensions expressly the Borrower pursuant to the Subordination Agreement; provided for in the agreements evidencing that any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable shall be owed exclusively to the obligor thereon or to partners in the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromBorrower;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in otherwise permitted by this Section, provided that the aggregate sum (without duplication) outstanding at any time outstanding; provided that any such Indebtedness of (xi) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence aggregate principal amount of such Indebtedness, as (ii) the case may beaggregate amount of Contingent Obligations permitted by Section 5.17(c), (iii) the aggregate amount secured by Liens permitted by Section 5.15(i) and (yiv) in the case aggregate unrecovered amount of purchase money IndebtednessInvestments under Section 5.16(f), shall constitute not less than 75% of the aggregate consideration paid with respect to such assetexceed $84,000,000;
(d) the SBA PPP LoanIndebtedness secured by Liens permitted by Section 5.15(i);
(e) Tax Indebtedness in respect not otherwise permitted, provided that such Indebtedness has a weighted average life to maturity greater than the then remaining weighted average life to maturity of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposesTerm Loans;
(f) Indebtedness incurred by any Loan Party under the Additional Credit Facility in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect an aggregate principal amount not to reimbursement-type obligations regarding workers compensation claims;exceed $50,000,000; and
(g) Indebtedness incurred by any Loan Party arising from a Qualifying Debt Incurrence; provided, in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result case of the borrowing incurrence of moneyany Indebtedness under subsection (e) incurred or (g) above, that simultaneously with the incurrence of such Indebtedness an amount not less than the amount of the proceeds thereof, net of costs in connection with the issuance thereof, this Amendment No. 4 and the Additional Credit Agreement and, in the ordinary course case of business in accordance with customary terms and paid within the specified timesubsection (g) above, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness net of (ix) any Loan Party owing up to any other Loan Party $50,000,000 required to prepay the Fleet Agreement and the First Union Agreement and (iiy) Indebtedness owed at the election of the Borrower, cash retained by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party it to the extent necessary to increase its aggregate cash and cash equivalents, as of the Amendment No. 4 Effective Date and after giving effect to the transactions on such Indebtedness date, by an amount not exceeding $50,000,000 (plus the aggregate amount of Scheduled Amortization of the Term Loans actually paid subsequent to December 31, 2002 and prior to the Amendment No. 4 Effective Date), is permitted applied as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full optional prepayment of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;Term Loans.
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment Section 5.18 is amended to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent read in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.entirety as follows:
Appears in 2 contracts
Sources: Credit Agreement (Universal City Development Partners LTD), Credit Agreement (Universal City Development Partners LTD)
Indebtedness. CreateNeither the Borrower nor any of its Subsidiaries shall directly or indirectly create, incur, assume or suffer otherwise become or remain directly or indirectly liable with respect to, or permit to exist exist, any Indebtedness, except the followingIndebtedness which, without duplication (which constitutes “Permitted Indebtedness”):
(a) Obligations when aggregated with Total Adjusted Outstanding Indebtedness of the Loan Parties under the Loan Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b)Borrower, but would not any extensions, renewals or replacements of such Indebtedness except exceed (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date sixty percent (60%) of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extendedCapitalization Value, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, however, that, in connection with a portfolio acquisition, for the six (6) consecutive quarters after such acquisition, Total Adjusted Outstanding Indebtedness permitted under the immediately preceding clause may exceed sixty percent (i60%) of Capitalization Value, but in no event exceed sixty-five percent (65%) of Capitalization Value, or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases Secured Indebtedness of the Consolidated Businesses and the Borrower’s proportionate share (determined in accordance with GAAP) of Secured Indebtedness of its Minority Holdings, fifty percent (50%) of the Capitalization Value. In addition, neither the Borrower nor any of its Subsidiaries shall create, incur, assume or purchase otherwise become liable for, directly or indirectly, or permit to exist, Indebtedness for borrowed money Indebtednessfrom the General Partner, unless such Indebtedness is unsecured and expressly subordinated to the payment of the Obligations. For purposes of Section 10.1 only, (i) Total Adjusted Outstanding Indebtedness shall be secured adjusted by deducting therefrom an amount equal to the asset subject lesser of (x) Indebtedness that by its terms is scheduled to such additional Capital Leases mature on or acquired asset in connection with before the incurrence date that is 24 months from the date of such calculation (“Maturing Indebtedness, as the case may be”), and (y) in the case of purchase money IndebtednessUnrestricted Cash, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness Capitalization Value shall be evidenced adjusted by promissory notes deducting therefrom Cash and all such notes shall be subject to a first priority Lien pursuant to Cash Equivalents and adding back the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such caseamount, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided thatif any, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured by which Unrestricted Cash exceeds Maturing Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.0310.1(ii) only, all Obligations outstanding under (i) Secured Indebtedness shall be adjusted by deducting therefrom an amount equal to the Loan Documents will be deemed lesser of (x) Secured Indebtedness that by its terms is scheduled to have been incurred in reliance only mature on or before the exception in clause (a) date that is 24 months from the date of calculation of this Section 7.03. Notwithstanding anything to covenant (“Maturing Secured Indebtedness”), and (y) Unrestricted Cash, and (ii) Capitalization Value shall be adjusted by deducting therefrom Cash and Cash Equivalents and adding back the contrary hereinamount, no Loan Party shall have outstandingif any, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentby which Unrestricted Cash exceeds Maturing Secured Indebtedness.
Appears in 2 contracts
Sources: Credit Agreement (Simon Property Group L P /De/), Credit Agreement (Simon Property Group L P /De/)
Indebtedness. Create, incur, assume assume, permit, guarantee, or suffer otherwise become or remain, directly or indirectly, liable with respect to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of the Loan Parties under the Loan DocumentsIndebtedness evidenced by this Agreement;
(b) Surviving Indebtedness listed set forth on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;5.4
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be fully secured by the asset subject to such additional Capital Leases Permitted Liens or acquired asset by Liens described in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;Section 7.2(u)
(d) a guarantee obligation in connection with an exchange permitted under Section 1031 of the SBA PPP LoanIRC;
(e) refinancings, renewals, or extensions of Indebtedness in respect of Swap Contracts designed to hedge against interest ratespermitted under clauses (b), foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(e), (f) Indebtedness incurred by any Loan Party in respect of letters of credit), bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by of this Section 7.1 (and continuance or renewal of any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of moneyPermitted Liens associated therewith) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
so long as: (i) Indebtedness the terms and conditions of (i) any Loan Party owing to any other Loan Party and such refinancings, renewals, or extensions do not materially impair the prospects of repayment of the Obligations by Borrower, (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such that the Indebtedness that is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and refinanced was subordinated in right of payment to the payment in full Obligations, then the subordination terms and conditions of the Obligations pursuant refinancing Indebtedness must be at least as favorable to Banks as those applicable to the terms refinanced Indebtedness, and (iii) if and to the extent any such refinancings, renewals or extensions are for assets acquired, sold, refinanced, or funded by an Equity Infusion, the original amount of the applicable promissory notes Advance corresponding to such asset shall be repaid to Lender concurrently with such refinancing, extension or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agentrenewal;
(j1) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment non-recourse debt incurred by Borrower as a result portion of the conversion Borrower’s purchase price of (i) real property, or (ii) pools of notes fully secured by liens on real property; and(g) debt which is recourse to or guaranteed by Borrower, where such convertible debt is incurred or assumed by Borrower or Borrower’s Subsidiaries or Affiliates and fully secured by (i) real property, or (ii) pools of notes into Equity Interests of Parent) to the Obligationsfully secured by liens on real property;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.
Appears in 2 contracts
Sources: Loan Agreement (Prospect Acquisition Corp), Loan Agreement (Prospect Acquisition Corp)
Indebtedness. CreateNo Credit Party shall create, incur, assume or suffer permit to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):
(a) Obligations of the Loan Parties under the Loan Documents;
Indebtedness secured by Permitted Encumbrances, (b) Surviving Indebtedness listed on Schedule 7.03(b)the Loans and the other Obligations, but not any extensions(c) reimbursement obligations owed by Borrower to the L/C Issuer with respect to Letters of Credit and Eligible Trade L/Cs, renewals (d) the Senior Notes (and refundings, renewals, refinancings or replacements of such Indebtedness except extensions thereof, as long as (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity principal amount thereof is greater not increased (other than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset ordinary costs and expenses incurred in connection with the incurrence applicable refunding, renewal, refinancing or extension), (ii) the terms and provisions thereof are not more burdensome to any Credit Party than the terms and provisions of the Senior Notes, (iii) the fees with respect thereto are not greater than those payable with respect to the Senior Notes and the rate of interest with respect thereto does not exceed the sum of (x) the rate of interest on United States treasury obligations of like tenor at the time of such Indebtednessrefunding, as the case may berenewal, refinancing or extension plus (y) 7% per annum, and (yiv) in such indebtedness is unsecured and not guaranteed by any Person which has not also guaranteed the case of purchase money IndebtednessObligations and the indebtedness being refunded, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
renewed, refinanced or extended), (e) Indebtedness in respect of Swap Contracts designed to hedge against interest ratesdeferred taxes, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) unfunded pension fund and other employee benefit plan obligations and liabilities to the extent they are permitted to remain unfunded under applicable law, (g) existing Indebtedness set forth in Disclosure Schedule 6.3 and refinancings thereof or amendments or modifications thereto on terms and conditions no less favorable to any Credit Party, Agent or any Lender, as determined by Agent, than the terms of the Indebtedness being refinanced, amended or modified, (h) intercompany loans among the Loan Parties for operating expenses incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(gi) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection intercompany loans by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing , to any other Loan Party Store Guarantors and (ii) Indebtedness owed intercompany loans by a Subsidiary that is not a Guarantor Subsidiary Store Guarantors to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business business, (j) intercompany loans to Foreign Subsidiaries or Joint Ventures not to exceed $2,000,000 in the aggregate; provided that at the time any such intercompany loan is made to a Foreign Subsidiary or Joint Venture no Event of the Loan Parties;
Default shall have occurred and be continuing or would result after giving effect thereto and Borrower shall have Borrowing Availability of at least $5,000,000 after giving effect thereto, (k) Indebtedness in respect of an unsecured $100,000 customs bond line from Barclays Bank for the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured Foreign Subsidiaries and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) obligations under interest rate swaps on an unsecured basis. No Credit Party shall directly or indirectly voluntarily prepay, repurchase or redeem any Indebtedness other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03Obligations. Notwithstanding anything to the contrary contained herein, no Loan Party Ultimate Parent shall have outstanding, create or be entitled to incur any unsecured Indebtedness owing in an aggregate outstanding amount not to any other Loan Party or any Affiliate or employee of any Loan Party unless exceed $25,000,000 as long as such Indebtedness is expressly permitted hereunder and expressly (a) subordinated to the Loans Obligations on terms, and other Obligations in a manner and on terms pursuant to documentation, satisfactory to Agent or (b) (i) matures within ninety one (91) days of the Administrative Agentdate it is first incurred or issued and (ii) not guaranteed by any Person and not entitled to any credit support of any nature.
Appears in 2 contracts
Sources: Credit Agreement (Wilsons the Leather Experts Inc), Credit Agreement (Wilsons the Leather Experts Inc)
Indebtedness. CreateThe Obligors will not, and will not cause any of their Subsidiaries to, incur, assume create or suffer permit to exist any Indebtednessindebtedness without the prior written consent of the Bank, except that the Borrower may incur, create or permit to exist the following, without duplication (which constitutes “Permitted Indebtedness”)::
(a) Obligations existing indebtedness disclosed in the Company's Form 10-Q for the period ended January 31, 1997, or listed and described on Schedule 5.10 attached hereto and renewals, extensions and refinancings thereof, provided that the effective rate of amortization thereof is not increased by any such renewal, extension or refinancing and any such renewal extension or refinancing shall not be on terms less favorable to the Loan Parties under Obligors and their Subsidiaries than those provided in the Loan Documentsexisting agreements for such indebtedness;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable indebtedness to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromBank;
(c) Indebtedness with respect indebtedness subordinated to Capital Leases the indebtedness evidenced by the Loan Documents on terms and conditions satisfactory to the Bank;
(d) indebtedness arising from purchase money Indebtedness mortgages or capital leases for equipment financing;
(e) acquisition indebtedness provided by the seller in an amount any transaction, provided that such indebtedness is unsecured and is treated as current debt for purposes of compliance with the covenants contained in this Agreement and neither the Obligors nor any of their Subsidiaries make any covenant (other than to repay such indebtedness) in incurring such indebtedness;
(f) additional secured indebtedness, provided that such indebtedness shall not to exceed $1,000,000 10,000,000 in the aggregate at any time outstanding("Additional Secured Indebtedness"); provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;and
(g) Indebtedness incurred by any Loan Party in respect indebtedness under unsecured lines of accounts payable to trade creditors for goods and services and current operating liabilities (not the result credit or unsecured revolving lines of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtednesscredit, provided that such Indebtedness matures indebtedness shall not less than one hundred eighty (180exceed $55,000,000 in the aggregate for Obligors and their Subsidiaries at any time; provided, however, that any indebtedness permitted under this Section 5.10(g) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock shall be on terms and conditions reasonably acceptable to Bank. The terms and conditions set forth in the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03proposed Commitment from CoreStates Bank, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything N.A. dated March 17, 1997, as amended May 23, 1997, are acceptable to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing Bank and will continue to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness be acceptable so long as they are not changed in a way that is expressly permitted hereunder and expressly subordinated materially adverse to the Loans Obligors and other Obligations in a manner and on terms satisfactory to the Administrative Agenttheir Subsidiaries.
Appears in 2 contracts
Sources: Term Loan Agreement (Central Sprinkler Corp), Term Loan Agreement (Central Sprinkler Corp)
Indebtedness. CreateNone of the Credit Parties will contract, create, incur, assume or suffer permit to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of Indebtedness arising under this Agreement and the Loan Parties under the Loan other Credit Documents;
(b) Surviving Indebtedness listed of the Borrower and its Subsidiaries in existence on Schedule 7.03(b), the Effective Date to the extent disclosed in SCHEDULE 7.1(b) (but not including any extensionsrenewal, renewals refinancing or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromextension thereof);
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in (including Capital Leases) incurred by the Borrower or any of its Subsidiaries after the Closing Date to finance the purchase of fixed assets acquired after the Closing Date; PROVIDED, THAT (i) the total of all such Indebtedness for the Borrower and its Subsidiaries taken together shall not exceed an aggregate principal amount not to exceed of $1,000,000 in the aggregate 10,000,000 at any time outstanding; provided that any (ii) such Indebtedness when incurred shall not exceed the purchase price of the asset(s) financed; and (xiii) in such Indebtedness is issued and any Liens securing such Indebtedness are created at the case time of, or within ninety (90) days after, the acquisition of additional Capital Leases or purchase money Indebtedness, shall be such assets and such Indebtedness is not secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asseta Lien on any other assets;
(d) obligations of the SBA PPP Loan;
(e) Indebtedness Borrower or any of its Subsidiaries in respect of Swap Contracts designed Lender Hedging Agreements entered into in order to hedge against interest rateslimit exposure to floating rate indebtedness or foreign currency fluctuation and exchange rate risk of the Borrower or any of its Subsidiaries, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(fe) intercompany Indebtedness incurred by any Loan Party in respect arising out of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsloans and advances constituting Permitted Investments;
(gf) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party addition to the extent such Indebtedness is otherwise permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.7.1
Appears in 1 contract
Indebtedness. CreateThe Borrower will not create, incur, assume or suffer to exist or otherwise become or be liable in respect of any Indebtedness, except other than, without duplication, the following, without duplication (which constitutes “Permitted Indebtedness”)::
(a) Obligations Indebtedness in respect of the Loan Parties under the Loan DocumentsLoans and other Obligations;
(b) Surviving until the date of the initial Loan, Indebtedness listed identified in Item 7.2.2(b) ("Indebtedness to be Paid") of the Disclosure Schedule;
(c) Indebtedness existing on Schedule 7.03(b), but the date hereof and identified in Item 7.2.2(c) ("Ongoing Indebtedness") of the Disclosure Schedule;
(d) Indebtedness that is incurred to purchase a capital asset and is secured by the Liens referred to in clause (b) of Section 7.2.3 in an aggregate principal amount not to exceed $100,000 at any time outstanding; and
(e) any extensions, renewals or replacements of such Indebtedness except described in clause (c) above to the extent that (i) renewals and extensions expressly provided for in the agreements evidencing any aggregate principal amount of such Indebtedness as is not at any time increased and neither the same are in effect on maturity nor the date average life of this Agreement and such Indebtedness is shortened, (ii) refinancings and extensions of any such Indebtedness if the terms Indebtedness being refinanced is subordinated to the Obligations, the refinancing Indebtedness shall be subordinated to the Obligations and conditions thereof are the Loan Documents in all respects at least to the same extent and shall not be less favorable to the obligor thereon or Lender in any respect and (iii) no terms applicable to such Indebtedness shall be less favorable to the Lenders Lender or more onerous to the Borrower in any material respect than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that terms of the Indebtedness being refinanced or extendedrefinanced; provided, such however, that no Indebtedness otherwise permitted under the by clauses (d) through (e) may be incurred if, immediately preceding clause (i) before or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect after giving effect to the Indebtedness being extendedincurrence thereof, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has shall have occurred and is continuing be continuing. The Borrower will, prior to entering into any agreement evidencing any extension, renewal or would result therefrom;
(c) replacement of Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; as provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything e), deliver to the contrary hereinLender with copies for the Lender reasonably in advance of the execution thereof, no Loan Party shall have outstanding, create any final or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee execution form copy of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentagreement.
Appears in 1 contract
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of the Loan Parties Indebtedness under the Loan Documents;
Documents (b) Surviving Indebtedness listed on Schedule 7.03(b)including, but not any extensionswithout limitation, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in connection with the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness Ventas Purchase Option ABL Loans in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such principal amount of Converting ABL Loans immediately prior to the Ventas Purchase Option Assignment);
(b) Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect Borrowers and their Restricted Subsidiaries set forth in Schedule 8.03 (and renewals, refinancings and extensions thereof (not exceeding the principal amount of the Indebtedness so renewed, refinanced or extended) on terms and conditions not materially less favorable (taken as a whole) to such assetthe applicable debtor(s) or to the Lenders);
(c) intercompany Indebtedness permitted under Section 8.02;
(d) obligations (contingent or otherwise) of the SBA PPP Loan;
(e) Indebtedness in respect of Borrowers or any Restricted Subsidiary existing or arising under any Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred Contract entered into in the ordinary course of business and not for speculative purposes;
(fe) purchase money Indebtedness incurred by any Loan Party (including obligations in respect of letters Capital Leases or Synthetic Leases) hereafter incurred by the Borrowers or any of credittheir Restricted Subsidiaries to finance the purchase of fixed assets, bank guaranteesand renewals, bankers’ acceptancesrefinancings and extensions thereof; provided that (i) the total of all such Indebtedness for all such Persons taken together shall not exceed an aggregate principal amount of the greater of (A) $190,000,000 and (B) 40% of Consolidated EBITDA at any one time outstanding; (ii) such Indebtedness when incurred shall not exceed the purchase price of the asset(s) financed; and (iii) no such Indebtedness shall be refinanced for a principal amount in excess of the principal balance outstanding thereon at the time of such refinancing (other than for interest, warehouse receipts or similar instruments issued or created in the ordinary course of businesspremiums, including penalties and fees);
(f) Securitization Transactions (solely in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect Collateral of a type that would not constitute ABL Priority Collateral) in an aggregate principal amount at any one time outstanding not to reimbursement-type obligations regarding workers compensation claimsexceed the greater of (A) $75,000,000 and (B) 25% of Consolidated EBITDA;
(g) intercompany Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not under the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPLHP Cash Management Transfer System;
(h) Indebtedness consisting under performance bonds, surety bonds, letter of guarantees resulting from endorsement of negotiable instruments credit obligations to provide security for collection by any Loan Party workers’ compensation claims and bank overdrafts, in each case in the ordinary course of business;
(i) Indebtedness in the form of trade payables and accrued expenses incurred in the ordinary course of business;
(j) other Indebtedness in an aggregate principal amount not to exceed the greater of (iA) $190,000,000 and (B) 40% of Consolidated EBITDA at any Loan Party owing to one time outstanding;
(k) Indebtedness of the Borrowers or any other Loan Party and in the form of loans from the Captive Insurance Subsidiary in an aggregate principal amount at any time outstanding not to exceed twenty percent (ii20%) of the total assets of the Captive Insurance Subsidiary, as shown on the most recent balance sheet of the Captive Insurance Subsidiary in accordance with GAAP;
(l) Earn-Out Obligations not to exceed $10,000,000 in the aggregate at any one time outstanding;
(m) Guarantees by any Borrower or its Restricted Subsidiaries of Indebtedness owed permitted to be incurred by a such Borrower or Restricted Subsidiary in accordance with the provisions of this Agreement; provided that in the event such Indebtedness that is not a Guarantor Subsidiary to being Guaranteed is Subordinated Indebtedness, then any related Guarantee of any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral AgentLoans;
(jn) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance of the Loan Parties incurred in the ordinary course of business under financing arrangements related to the prepayment of premiums and deductibles under the Loan Parties’ insurance policies;
(ko) Indebtedness in respect of Non-Guarantor Restricted Subsidiaries, together with any Indebtedness incurred by Non-Guarantor Restricted Subsidiaries pursuant to Section 8.03(u) and to Section 8.03(v) below not to exceed the convertible notes; provided that, all such Indebtedness in respect greater of the convertible notes shall be unsecured (A) $190,000,000 and subordinated in right (B) 40% of payment to the payment in full (other than Consolidated EBITDA at any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligationsone time outstanding;
(lp) other unsecured Indebtedness(a) Indebtedness incurred pursuant to the Term Loan Facility by the Borrowers or any Loan Party in an aggregate principal amount of commitments, loans or letters of credit thereunder (without any duplication thereof) not to exceed the sum of (x) $900,000,000 and (y) any incremental loan facilities permitted thereunder as in effect on the Effective Date; provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable is subject to the Administrative Agent terms of the Intercreditor Agreement in its sole discretion. For purposes the capacity of determining compliance with this Section 7.03“Term Loan Obligations” and (b) after consummation of the Ventas Purchase Option, all Obligations outstanding Indebtedness assigned to the Ventas Assignees under the Term Loan Documents will be deemed Facility in an amount equal to have been incurred the Ventas Purchase Option Term Loan Amount (as defined in reliance only the Term Loan Credit Agreement as in effect on the exception Original Closing Date) (the “Ventas Purchase Option Term Loans”) (provided that the guarantees in clause (a) respect of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder by ▇▇▇▇▇▇, Borrowers and expressly Loan Parties thereunder shall be subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.Non-Ventas Purchase Option ABL Loans);
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Ardent Health Partners, LLC)
Indebtedness. CreateIssue, incurincur or assume any Indebtedness (excluding any Disqualified Stock or any preferred Equity Interests); provided that the Borrowers and the Restricted Subsidiaries may issue, incur or assume Indebtedness (“Ratio Debt”) so long as (i) such Indebtedness does not mature or suffer have any scheduled amortization or payments, repurchases or redemptions of principal (other than customary amortization payments), in each case, prior the final maturity date of the Revolving Credit Commitments at the time such Indebtedness is incurred and such Indebtedness does not have a shorter Weighted Average Life to exist Maturity than the Revolving Credit Commitments then outstanding, in each case other than Indebtedness in an aggregate principal amount that does not exceed the greater of (a) $50,000,000 and (b) 25% of Consolidated EBITDA as of the date any such Indebtedness is incurred, (ii) immediately after giving effect to the issuance, incurrence or assumption of such Indebtedness, except the followingInterest Coverage Ratio is 2.00 to 1.00 or greater, without duplication calculated on a Pro Forma Basis, (which constitutes iii) the aggregate principal amount of Ratio Debt incurred by Restricted Subsidiaries that are not Guarantors, when aggregated with the amount of Permitted Refinancing Indebtedness incurred by Restricted Subsidiaries that are not Guarantors in respect of Ratio Debt, may not exceed $25,000,000 at any time outstanding, (iv) to the extent such Indebtedness is secured by the Collateral, it will be subject to intercreditor or lien subordination arrangements reasonably satisfactory to the Administrative Agent, and (v) no Event of Default shall exist or would result therefrom. The foregoing limitation will not apply to (collectively, “Permitted Indebtedness”):
(a) Obligations of the Loan Parties under the Loan Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur including any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.Revolving Credit Commitment Increase);
Appears in 1 contract
Sources: Credit Agreement (Leslie's, Inc.)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness, except the following, (without duplication (which constitutes “Permitted Indebtedness”duplication):
(a) Obligations of Indebtedness existing on the Loan Parties under the Loan Documents;
(bdate hereof and set forth in Schedule 6.01(a) Surviving Indebtedness listed on Schedule 7.03(b), but not and any extensions, renewals or replacements of such Indebtedness except existing mortgages and Capital Lease Obligations; provided, however, that (i) renewals and extensions expressly provided for in the agreements evidencing principal amount of any such Indebtedness as extension, renewal or replacement shall not exceed the same are in effect on principal amount of the date of this Agreement and mortgage or Capital Lease Obligation so extended, renewed or replaced, (ii) refinancings the mortgage or Capital Lease Obligation so extended, renewed or replaced shall not be secured by any property or asset that was not already pledged to secure the existing mortgage or Capital Lease Obligation, and extensions of any (iii) such Indebtedness if extension, renewal or replacement is not on terms materially more restrictive to the terms and conditions thereof are not Borrower or its Subsidiaries or materially less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced mortgage or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being Capital Lease Obligation so extended, renewed or refinancedreplaced;
(b) Indebtedness represented by the Loan Documents; provided, however, that Indebtedness consisting of commercial paper of the Borrower may also be incurred pursuant to this clause (Bb) exceed in a to the extent the sum of such Indebtedness and the aggregate principal amount of Loans then outstanding do not exceed the Indebtedness being renewed, extended or refinanced, or Total Commitment at such time (Csubject to Section 6.01(n) be incurred, created or assumed if any Default or Event to the extent such sum is in excess of Default has occurred and is continuing or would result therefrom;$100,000,000).
(c) Indebtedness incurred upon the acquisition of any property or asset secured by Liens on such property or asset in accordance with respect to Capital Leases and Section 6.02(b); provided, however, that the amount of such Indebtedness shall not exceed the purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that price of any such Indebtedness (x) in the case of additional Capital Leases property or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP LoanIndebtedness secured by Liens permitted under Section 6.02(i), 6.02(j) or 6.02(m);
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks Subsidiaries existing at the time they are acquired by the Borrower and not incurred in the ordinary course contemplation of business and not for speculative purposessuch acquisition;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsof Subsidiaries not prohibited by Section 6.09;
(g) Indebtedness incurred by of (i) the Borrower to any Loan Party wholly owned Subsidiary, Choice Hotels Franchising or Quality Hotels; (ii) any wholly owned Subsidiary, Choice Hotels Franchising or Quality Hotels to the Borrower; and (iii) any Subsidiary, Choice Hotels Franchising or Quality Hotels to any wholly owned Subsidiary (or to Choice Hotels Franchising or Quality Hotels)(for the purposes of this clause (g), "wholly owned Subsidiary" includes any wholly owned subsidiary of Choice Hotels Franchising and/or Quality Hotels, any Subsidiary that would otherwise constitute a wholly owned Subsidiary but for directors' qualifying shares or similar matters, and any Subsidiary the only direct shareholders, members or participants in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified timewhich are wholly owned Subsidiaries, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPChoice Hotels Franchising or Quality Hotels);
(h) Indebtedness consisting represented by notes or letters of guarantees resulting from endorsement credit issued for the account of negotiable instruments the Borrower or any Subsidiary in connection with insurance policies and in a form substantially similar to the notes or letters of credit issued for collection by the account of the Borrower or any Loan Party Subsidiary set forth in Schedule 6.01(h) issued in connection with existing insurance policies of the ordinary course of businessBorrower or such Subsidiary;
(i) Indebtedness represented by utility bonds, performance bonds, state self insurance bonds and miscellaneous other bonds other than those existing on the date hereof and listed in Schedule 6.01(a) (including any extensions, renewals and replacements), the aggregate principal amount of such Indebtedness at any one time not to exceed $20,000,000 (isubject to Section 6.01(n) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right excess of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent$20,000,000);
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan PartiesBorrower consisting of Guarantees in connection with pension and deferred compensation arrangements arising in connection with the Distribution; provided, however, that the aggregate amount of such Indebtedness shall not exceed $40,000,000;
(k) Indebtedness in respect consisting of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the ObligationsManor Care Note;
(l) Non-Recourse Hotel Indebtedness; provided, that, so long as the Manor Care Note remains in effect or any principal, interest or any other unsecured Indebtednessexpenses or amounts payable thereunder shall be unpaid, provided that the proceeds of the incurrence of such Non-Recourse Hotel Indebtedness matures not less than one hundred eighty shall be applied solely to prepay amounts outstanding under the Manor Care Note;
(180m) days following the Last Out Maturity DateIndebtedness consisting of Sale and Lease-back Transactions permitted under Section 6.03; and
(mn) other unsecured Indebtedness of the 2021 Preferred Stock on terms reasonably acceptable Borrower in an aggregate principal amount at any one time outstanding not to exceed $100,000,000; provided, however, that the Administrative Agent covenants and events of default contained in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder with an aggregate principal amount in excess of $10,000,000 shall not be more restrictive of the Borrower and expressly subordinated to its Subsidiaries than those in this Agreement; and provided further, that the Loans and other Obligations in a manner and on terms satisfactory to aggregate amount of Guarantees by the Administrative AgentBorrower may not exceed $50,000,000.
Appears in 1 contract
Sources: Revolving Credit Facility Agreement (Choice Hotels Holdings Inc)
Indebtedness. CreateThe Credit Parties will not permit any member of the Consolidated Group to contract, create, incur, assume or suffer permit to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of Indebtedness existing or arising under this Credit Agreement or the Loan Parties under the Loan other Credit Documents;
(b) Surviving Indebtedness listed existing on the Closing Date and set forth on Schedule 7.03(b)8.1 and any renewals, but not any extensionsrefinancings, renewals or replacements refundings and extensions thereof, provided that (i) the amount of such Indebtedness except (i) renewals and extensions expressly provided for in is not increased at the agreements evidencing any time of such Indebtedness as the same are in effect on the date of this Agreement renewal, refinancing, refundings or extension and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not no less favorable to the obligor thereon or to the Lenders such Person than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromexisting Indebtedness;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness (including obligations in respect of Capital Leases or Synthetic Leases) hereafter incurred by the Borrower or any of its Subsidiaries to finance the purchase of fixed assets, provided that (i) the total of all such Indebtedness for the Borrower and its Subsidiaries taken together shall not exceed an aggregate principal amount not to exceed of $1,000,000 in the aggregate 3,000,000 at any one time outstanding; provided that any (ii) such Indebtedness when incurred shall not exceed the purchase price of the asset(s) financed; and (xiii) in the case of additional Capital Leases or purchase money Indebtedness, no such Indebtedness shall be secured by refinanced for a principal amount in excess of the asset subject to such additional Capital Leases or acquired asset in connection with principal balance outstanding thereon at the incurrence time of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such assetrefinancing;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against obligations owing under interest ratesrate, commodities and foreign currency exchange rates or commodities pricing risks incurred protection agreements entered into in the ordinary course of business to manage existing or anticipated risks and not for speculative purposes;
(e) unsecured intercompany Indebtedness owing to another member of the Consolidated Group (subject, however, to the limitations of Section 8.6 in the case of the member of the Consolidated Group extending the loan, advance or credit);
(f) Indebtedness incurred secured Funded Debt of the UK Subsidiaries (the "UK Subsidiary Credit Facility") in an aggregate principal amount not to exceed an amount equal to the sum of (i) the UK Borrowing Base minus (ii) the aggregate amount of Investments (including loans and advances) made by any Loan Party in respect the members of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created the North American Group in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;UK Subsidiaries.
(g) Indebtedness incurred unsecured Funded Debt assumed by any Loan Party the Borrower and its Subsidiaries in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance connection with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPAcquisitions permitted hereunder;
(h) Indebtedness consisting secured Funded Debt of guarantees resulting from endorsement ▇▇▇▇ of negotiable instruments All Games, Inc. under the floor planning line of credit for collection by Nintendo inventory in an aggregate principal amount not to exceed $5,000,000 at any Loan Party in the ordinary course of businesstime outstanding;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full Funded Debt of the Obligations pursuant Borrower and its Subsidiaries in an aggregate outstanding principal amount of up to the terms of the applicable promissory notes or an intercompany subordination agreement that in $2,000,000 at any such case, is reasonably satisfactory to the Collateral Agent;time; and
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant Support Obligations of any Credit Party with respect to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with permitted under this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent8.1.
Appears in 1 contract
Sources: Credit Agreement (Take Two Interactive Software Inc)
Indebtedness. Create, No Borrower or Guarantor shall incur, assume create, assume, become or suffer be liable in any manner with respect to, or permit to exist exist, any Indebtednessobligations or indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):
(a) Obligations of the Loan Parties under the Loan Documents;
Obligations; (b) Surviving Indebtedness listed trade obligations and normal accruals in the ordinary course of business not unpaid more than 50 days past the invoice dates thereof, or with respect to which the applicable Borrower or Guarantor is contesting in good faith the amount or validity thereof by appropriate proceedings diligently pursued and available to such Borrower or Guarantor, and with respect to which adequate reserves have been set aside on Schedule 7.03(b)its books; and any obligation, but not in connection with the borrowing of money or the deferred payment for the purchase of property, secured by a lien or encumbrance permitted under Section 9.8; (c) purchase money indebtedness (including capital leases) to the extent not incurred or secured by liens (including capital leases) in violation of any extensionsother provision of this Agreement; (d) deferred taxes; (e) unfunded employee benefit plan obligations to the extent that, renewals as a result thereof, no Borrower or replacements Guarantor is in violation of such Indebtedness except applicable law or has become or could reasonably be expected to become liable for any penalty or tax in an aggregate amount in excess of $500,000; (f) the Senior Notes and the obligations or indebtedness set forth on the Information Certificate; provided, that, (i) renewals the applicable Borrower or Guarantor may only make regularly scheduled payments of principal and extensions expressly provided for interest in respect of such indebtedness in accordance with the agreements terms of the agreement or instrument evidencing any or giving rise to such Indebtedness indebtedness as the same are in effect on the date of this Agreement and hereof, (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon no Borrower or to the Lenders than the Indebtedness being refinanced Guarantor shall, directly or extendedindirectly, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness amend, modify, alter or change the terms of an obligor that was not an obligor such indebtedness or any agreement, document or instrument related thereto as in effect on the date hereof, if the effect is to: (1) increase the interest rate on such indebtedness; (2) change the dates upon which payments of principal or interest are due on such indebtedness other than to extend such dates; (3) change any default or event of default other than to delete or make less restrictive any default provision therein, or add any covenant with respect to such indebtedness; (4) change the Indebtedness being extendedredemption or prepayment provisions of such indebtedness other than to extend the dates therefor or to reduce the premiums payable in connection therewith or to provide for earlier redemption at such Borrower's or Guarantor's option; (5) grant any security or collateral in favor of such indebtedness; (6) change or amend in any way the guarantees given by any Borrower or Guarantor in favor of the holder of such indebtedness; or (7) change or amend any other term if such change or amendment would materially increase the obligations of the obligor or confer additional material rights to the holder of such indebtedness in a manner adverse to any Borrower, renewed any Guarantor, or refinanced, Lender; or (B) exceed in a principal amount the Indebtedness being renewedredeem, extended retire, defease, prepay, purchase or refinancedotherwise acquire such indebtedness prior to its stated maturity, or set aside or otherwise deposit or invest any sums for such purpose except: (C1) be incurred, created or assumed if any Default or Event a repurchase by Holdings of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset Senior Notes in connection with an "Asset Sale" permitted pursuant to a waiver by Lender of compliance with Section 9.7(b)(iii), (2) a repurchase by Holdings of Senior Notes pursuant to an offer required to be made under the incurrence Indenture in connection with a "Change of Control" as defined in the Indenture (and provided that no funds for such Indebtednessrepurchase are provided by any Borrower or other Guarantor except in accordance with Section 9.11), (3) a redemption or repurchase with the proceeds of refinancing indebtedness permitted under subsection (h) of this Section, and (4) a redemption or repurchase with the proceeds of an issuance of capital stock permitted by Section 9.7, (iii) each Borrower and Guarantor shall furnish to Lender all notices or demands in connection with such indebtedness either received by such Borrower or Guarantor or on its behalf, promptly after the receipt thereof, or sent by such Borrower or Guarantor or on its behalf, concurrently with the sending thereof, as the case may be, and (yiv) in the case of purchase money Indebtedness, shall constitute not less than 75% any such indebtedness which is subordinated to the payment of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness Obligations, no Borrower or Guarantor shall make any payment in respect of Swap Contracts designed such indebtedness that is contrary to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred the term of such indebtedness as in effect on the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
date hereof; (g) Indebtedness incurred by unsecured indebtedness of a Borrower or Guarantor in an aggregate outstanding principal amount of any Loan Party in respect of accounts payable time not exceeding $2,000,000, which is subordinated to trade creditors for goods and services and current operating liabilities (not the result payment of the borrowing Obligations on terms acceptable in form and substance to Lender, and as to which the applicable Borrower or Guarantor has complied with the last sentence of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to this Section 7.029.9; provided, that, in each case (A) all such Indebtedness the applicable Borrower or Guarantor shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to comply with the terms of the applicable promissory notes proviso to clause (f) of this Section with respect to such subordinated indebtedness to the same extent as if such terms were set forth in this clause; (h) indebtedness of a Borrower or an intercompany subordination agreement Guarantor, the proceeds of which are used to refinance indebtedness of such Borrower or Guarantor permitted under clauses (c) or (f) of this Section, so long as (i) such Borrower or Guarantor has complied with the last sentence of this Section 9.9 in connection therewith, (ii) the principal amount of such refinancing indebtedness does not exceed the outstanding principal balance of the indebtedness being refinanced plus any required prepayment penalties or premiums and the reasonable and customary costs and expenses of such refinancing; (iii) such refinancing indebtedness is not guaranteed by any Borrower or Guarantor that in did not guaranty the refinanced indebtedness, and any such case, new guaranty is reasonably satisfactory subordinated to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business payment of the Loan Parties;
Obligations on terms either identical to the subordination provisions of the guaranty of the refinanced indebtedness or otherwise acceptable in form and substance to Lender, (kiv) Indebtedness the rates and amounts of interest, principal, redemption, and other payments in respect of the convertible notesrefinancing indebtedness are no greater, and the required payment dates thereof are no more frequent or earlier, than under the refinanced indebtedness, (v) no funds for any such refinancing are provided by any Borrower or Guarantor except in accordance with Section 9.11, and (vi) Lender shall have determined in its reasonable judgment that the terms and conditions of such refinancing indebtedness are no less favorable to Lender, Holdings, Borrowers, and Guarantors than the refinanced indebtedness; provided provided, that, all such Indebtedness in respect the applicable Borrower or Guarantor shall comply with the terms of the convertible notes shall be unsecured and subordinated in right of payment proviso to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (af) of this Section 7.03. Notwithstanding anything with respect to such refinancing indebtedness to the contrary herein, no Loan Party shall have outstanding, create same extent as if such terms were set forth in this clause; (i) indebtedness of a Borrower or incur any Indebtedness owing Guarantor to any other Loan Party Borrower or Guarantor in respect of a loan or advance permitted by Section 9.10; and (j) rental obligations under operating leases of real or personal property. In connection with any Affiliate indebtedness proposed to be issued pursuant to clause (g) or employee (h) of any Loan Party unless the preceding sentence, the Borrower or Guarantor proposing to issue such Indebtedness is expressly permitted hereunder indebtedness shall (x) give Lender not less than 15 days' prior written notice of the intent to issue such indebtedness and expressly subordinated of all material terms and conditions of such indebtedness, (y) not less than three days prior to the Loans proposed issuance of such indebtedness, provide to Lender the latest drafts of all of the agreements and documents relating to such indebtedness, and (z) provide Lender with such other Obligations in a manner and on terms satisfactory to the Administrative Agentinformation regarding such indebtedness as Lender may request.
Appears in 1 contract
Sources: Loan and Security Agreement (Decorative Home Accents Inc)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist exist, directly or indirectly, any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of Indebtedness incurred pursuant to this Agreement and the Loan Parties under the other Loan Documents;
(b) Surviving (i) Indebtedness actually outstanding on the Closing Date and listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i6.01(b) or (ii) above shall not refinancings or renewals thereof; provided that (A) include any such refinancing Indebtedness is in an aggregate principal amount not greater than the aggregate principal amount of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, plus the amount of any premiums required to be paid thereon and fees and expenses associated therewith, (B) exceed in such refinancing Indebtedness has a principal amount later or equal final maturity and longer or equal weighted average life than the Indebtedness being renewed, extended renewed or refinanced, or refinanced and (C) the covenants, events of default subordination and other provisions thereof (including any guarantees thereof) shall be, in the aggregate, no less favorable to the Lenders than those contained in the Indebtedness being renewed or refinanced and provided further that the Indebtedness listed on Schedule 6.01(b) owing to UBS AG Stamford Branch shall not be incurredpermitted to remain in existence after December 31, created 2010 and such Indebtedness may not be refinanced or assumed if any Default or Event of Default has occurred and is continuing or would result therefromrenewed;
(c) Indebtedness of any Company under such non-speculative Interest Rate Agreements which may be entered into from time to time by any Company and which such Company in good faith believes will provide benefits or protection with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time then outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in permitted to remain outstanding, pursuant to the case other provisions of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such assetthis Section 6.01;
(d) the SBA PPP LoanIndebtedness under Hedging Agreements (other than Interest Rate Agreements) entered into from time to time by any Company in accordance with Section 6.04(c);
(e) intercompany Indebtedness in respect of Swap Contracts designed the Companies outstanding to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business extent permitted by Sections 6.04(d) and not for speculative purposes(h);
(f) Indebtedness incurred by any Loan Party in respect of letters Purchase Money Obligations and Capital Lease Obligations and refinancings or renewals thereof, in an aggregate amount not to exceed the greater of credit(i) $50.0 million or (ii) 15% of Consolidated Tangible Assets at any time outstanding;
(g) Indebtedness in respect of workers’ compensation claims, bank guaranteesself insurance obligations, bankers’ acceptancesperformance bonds, warehouse receipts surety appeal or similar instruments bonds and completion guarantees provided by a Company in the ordinary course of its business;
(h) Indebtedness in respect of (i) self-insurance obligations or completion, bid, performance, appeal or surety bonds issued for the account of the Borrower or created any Wholly Owned Subsidiary in the ordinary course of business, including in respect guarantees or obligations of workers compensation claims, health, disability the Borrower or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness any Wholly Owned Subsidiary with respect to reimbursementletters of credit supporting such self-type insurance, completion, bid, performance, appeal or surety obligations regarding workers (in each case other than for an obligation for money borrowed) or (ii) obligations represented by letters of credit for the account of the Borrower or any Wholly Owned Subsidiary, as the case may be, in order to provide security for workers’ compensation claims;
(gi) Indebtedness incurred arising from the honoring by any Loan Party a bank or other financial institution of a check, draft or similar instrument inadvertently (except in respect the case of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of moneydaylight overdrafts) incurred drawn against insufficient funds in the ordinary course of business in accordance with customary terms and paid business; provided, however, that such Indebtedness is extinguished within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPfive (5) Business Days of incurrence;
(hj) Indebtedness consisting of guarantees resulting from arising in connection with endorsement of negotiable instruments for collection by any Loan Party deposit in the ordinary course of business;
(ik) indemnification, adjustment of purchase price, earn-out or similar obligations (including without limitation any Earn Out Obligations), in each case, incurred or assumed in connection with the Permitted Acquisition or disposition of any business or assets of the Borrower or any Wholly Owned Subsidiary or Equity Interests of a Wholly Owned Subsidiary, other than guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Equity Interests for the purpose of financing or in contemplation of any such Permitted Acquisition; provided that (i) any Loan Party owing to amount of such obligations included on the face of the balance sheet of the Borrower or any other Loan Party Wholly Owned Subsidiary shall not be permitted under this clause (k) and (ii) Indebtedness owed by in the case of a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to disposition, the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, maximum aggregate liability in each case (A) respect of all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
outstanding under this clause (k) Indebtedness shall at no time exceed the gross proceeds actually received by the Borrower and the Wholly Owned Subsidiaries in respect of the convertible notes; provided that, all connection with such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligationsdisposition;
(l) Contingent Obligations of any Loan Party in respect of Indebtedness otherwise permitted under this Section 6.01 and to the extent permitted by Sections 6.04(d) and (h);
(m) other unsecured Indebtedness, provided that such Indebtedness matures of the Companies not less than one hundred eighty (180) days following the Last Out Maturity Dateto exceed $40.0 million in aggregate principal amount at any time outstanding; and
(mn) the 2021 Preferred Stock on terms reasonably acceptable Acquired Indebtedness not to the Administrative Agent exceed $20.0 million in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have aggregate principal amount at any time outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.
Appears in 1 contract
Indebtedness. CreateNeither the Parent nor any Borrower will, or will permit any of their respective Subsidiaries to, create, incur, assume or suffer permit to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):other than:
(a) Obligations Indebtedness in respect of the Loan Parties under the Loan DocumentsObligations;
(b) Surviving Indebtedness listed on Schedule 7.03(b)existing as of the Closing Date which is identified in ITEM 7.2.2(b) of the Disclosure Schedule, but not any extensions, renewals or and refinancings and replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount not in excess of the principal amount being refinanced or replaced; PROVIDED, HOWEVER, that after giving effect to any such refinancings the Average Life of such Indebtedness being renewed, extended or refinanced, or (C) shall not be incurred, created or assumed if any Default or Event less than the Average Life of Default has occurred and is continuing or would result therefromsuch Indebtedness immediately prior to such refinancings;
(c) Indebtedness with respect to Capital Leases and incurred by a Borrower or any of its Subsidiaries that is represented by (i) Capitalized Lease Liabilities, mortgage financings or purchase money obligations (but only to the extent otherwise permitted by SECTION 7.2.7); PROVIDED that the maximum aggregate amount of all Indebtedness permitted under this CLAUSE (c) shall not at any time exceed $20,000,000 or (ii) Capitalized Lease Liabilities incurred in an connection with a sale and leaseback transaction permitted under SECTION 7.2.15;
(d) intercompany Indebtedness of (x) any Subsidiary of VHC owing to VHC or any of its Subsidiaries or (y) VHC to any of its Subsidiaries, which Indebtedness: (i) shall be evidenced by one or more promissory notes in form and substance satisfactory to the Agents which (except in the case of any such notes held by a Non-U.S. Subsidiary) have been duly executed and delivered to (and indorsed to the order of) the Administrative Agent in pledge pursuant to the Pledge and Security Agreement, and (ii) shall not be forgiven or otherwise discharged for any consideration other than payment (Dollar for Dollar) in cash unless the Agents otherwise consent;
(e) the Senior Notes and the Senior Subordinated Notes of VHC in a principal amount not to exceed $1,000,000 315,000,000, and unsecured Contingent Liabilities of the Borrowers and the Guarantors in the aggregate at any time outstanding; provided that any such Indebtedness (x) respect thereof, so long as, in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness Contingent Liabilities in respect of Swap Contracts designed the Senior Subordinated Notes, such Contingent Liabilities are subordinated to hedge against interest ratesthe Obligations on the same terms as the Senior Subordinated Notes, foreign exchange rates or commodities pricing risks incurred in and refinancings of such Senior Notes, Senior Subordinated Notes and related Contingent Liabilities; PROVIDED, HOWEVER, that any such refinancing must be on No More Favorable Terms And Conditions than the ordinary course of business and not for speculative purposesIndebtedness being refinanced;
(f) the Parent Debentures in an aggregate principal amount at maturity not to exceed approximately $125,000,000 and refinancings thereof; PROVIDED, HOWEVER, that any such refinancing must be on No More Favorable Terms and Conditions than the Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsbeing refinanced;
(g) Assumed Indebtedness incurred by of a Borrower or any Loan Party of its Subsidiaries in respect of accounts payable connection with Eligible Acquisitions in an aggregate amount not to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPexceed $25,000,000 at any one time outstanding;
(h) Indebtedness consisting Hedging Obligations of guarantees resulting from endorsement any Borrower or any of negotiable instruments for collection its Subsidiaries entered into by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) Borrower or any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor such Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; providedhedge against interest rate, thatcurrency exchange rate or commodity price risk, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance arising in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured any Borrower and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures its Subsidiaries and not less than one hundred eighty (180) days following the Last Out Maturity Datefor speculative purposes; and
(mi) other unsecured Indebtedness of the 2021 Preferred Stock on terms reasonably acceptable Borrowers and their respective Subsidiaries in an aggregate amount at any time outstanding not to exceed $25,000,000; PROVIDED, HOWEVER, that no Indebtedness otherwise permitted by CLAUSE (c), (d) (as such CLAUSE (d) relates to loans made by a Borrower to Subsidiaries of VHC which are not Borrowers or Subsidiary Guarantors), (g) or (h) may be incurred or assumed, as applicable, if, after giving effect to the Administrative Agent incurrence thereof, any Default shall have occurred and be continuing, and PROVIDED, FURTHER, HOWEVER, that all such Indebtedness of the type described in its sole discretion. For purposes of determining compliance with this Section 7.03CLAUSE (d)(y) above that is owed to Subsidiaries which are not Borrowers or Subsidiary Guarantors, all Obligations outstanding under the Loan Documents will shall be deemed to have been incurred subordinated, in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything writing, to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on upon terms satisfactory to the Administrative AgentAgents.
Appears in 1 contract
Indebtedness. CreateThe Borrower will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create, incur, assume assume, guarantee or suffer otherwise become or remain directly or indirectly liable with respect to exist (collectively, "incur"), any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):that:
(a) Obligations of the Loan Parties under Borrower may become liable and remain liable with respect to the Loan DocumentsIndebtedness evidenced by the Mortgage Notes, the 2000 Parity Notes and the 2001 Parity Notes;
(b) Surviving Indebtedness listed on Schedule 7.03(b)the Borrower and the Restricted Subsidiaries may become and remain liable with respect to Funded Debt incurred by the Borrower and the Restricted Subsidiaries to finance the making of expenditures for the improvement, but not repair or alteration of any extensionsAssets, renewals or replacements the replacement of any Assets due to obsolescence with like-kind property, or to renew, refund, refinance or replace any such Indebtedness except Funded Debt; provided that (i) renewals and extensions expressly provided for in such Funded Debt is incurred to finance improvements, repairs, alterations or replacements made within the agreements evidencing any such Indebtedness as the same are in effect period of 365 days ending on the date of this Agreement and such Funded Debt is incurred, (ii) refinancings and extensions the aggregate principal amount of any such Indebtedness Funded Debt does not exceed the amount of Capital Contributions made during such 365-day period which are applied to finance the making of such improvements, repairs, alterations or replacements, (iii) if the terms and conditions thereof are not less favorable such Funded Debt is to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted be secured under the immediately preceding clause (i) Collateral Documents as provided in Section 6.02(h), the agreement or (ii) above shall not instrument pursuant to which such Funded Debt is incurred (A) include Indebtedness contains no financial or business covenants that are more restrictive on the Borrower or its Subsidiaries than or that are in addition to those contained in Section 10 of an obligor that was not an obligor the Note Agreements (unless prior to or simultaneously with the incurrence of such Funded Debt, this Agreement, the Note Agreements, the other Loan Documents and the Parity Debt Credit Agreement and the other loan documents related thereto are amended to provide the benefits of such more restrictive covenants to the Secured Parties thereunder) and (B) specifies no events of default (other than with respect to the Indebtedness being extended, renewed payment of principal and interest on such Funded Debt or refinanced, (Bthe accuracy of representations and warranties made in connection with such agreement or instrument) exceed in a principal amount which are capable of occurring prior to the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event occurrence of the Events of Default has occurred specified in Section 11 of the Note Agreements (unless prior to or simultaneously with the incurrence of such Funded Debt, this Agreement, the Note Agreements, the other Loan Documents and is continuing or would result therefromthe Parity Debt Credit Agreement and the other loan documents related thereto are amended to provide the benefits of such events of default to the holders of the Notes, the Mortgage Notes, the 2000 Parity Notes, the 2001 Parity Notes and the other Parity Debt, as applicable);
(c) Indebtedness any Restricted Subsidiary may become and remain liable with respect to Capital Leases and purchase money unsecured Indebtedness in an amount not of such Restricted Subsidiary owing to exceed $1,000,000 in the aggregate at any time outstandingBorrower or to another Restricted Subsidiary; provided that any such Indebtedness is created and is outstanding under an agreement or instrument pursuant to which such Indebtedness is subordinated to the Notes and the Indebtedness secured by the Collateral Documents and is evidenced by an Intercompany Note pledged to the Trustee pursuant to the Borrower Security Agreement;
(xd) the Borrower and the Restricted Subsidiaries may become and remain liable with respect to unsecured Indebtedness (including, without limitation, in the case of additional Capital Leases Indebtedness of Star/Petro, the Star/Petro Intercompany Subordinated Debt) owing to the General Partner or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with Public Partnership; provided that (i) the incurrence aggregate principal amount of such IndebtednessIndebtedness of the Borrower and the Restricted Subsidiaries outstanding at any time shall not be in excess of $10,000,000 (plus the Star/Petro Intercompany Subordinated Debt), (ii) such Indebtedness is created and is outstanding under an agreement or instrument, or the Star/Petro Intercompany Subordinated Note, as the case may be, pursuant to which such Indebtedness is subordinated to the Indebtedness secured under the Collateral Documents at least to the extent provided in the subordination provisions set forth in Exhibit D and (yiii) such Indebtedness is evidenced by a promissory note, or the Star/Petro Intercompany Subordinated Note, as the case may be, in form and substance satisfactory to the Required Lenders which is pledged to the Trustee pursuant to the Partners Security Agreement;
(e) the Borrower may become and remain liable with respect to Indebtedness incurred under this Agreement and the other Loan Documents, including any amendment hereof increasing the aggregate amount of credit which may be extended hereunder, provided that such amendment is entered into in accordance with Section 9.08;
(f) the Borrower and the Restricted Subsidiaries may become and remain liable with respect to Indebtedness, in addition to that otherwise permitted by the foregoing paragraphs of this Section 6.01, if on the date the Borrower or a Restricted Subsidiary becomes liable with respect to any such additional Indebtedness and immediately after giving effect thereto and to the substantially concurrent repayment of any other Indebtedness (i) the ratio of Consolidated Cash Flow to Consolidated Pro Forma Debt Service is greater than 2.50 to 1.00 and (ii) the ratio of Consolidated Cash Flow to Maximum Consolidated Pro Forma Debt Service is greater than 1.25 to 1.00; provided that, in addition to the foregoing, if such Indebtedness is Funded Debt incurred by the Borrower or any Restricted Subsidiary to finance the making of expenditures for the improvement, repair or alteration of any Assets, or additions to the Assets, and if such Indebtedness is to be secured under the Collateral Documents as provided in Section 6.02(h), such Indebtedness shall be incurred pursuant to an agreement or instrument which complies with the requirements set forth in clause (iii) of the proviso to Section 6.01(b);
(g) the Borrower and any Restricted Subsidiary may become and remain liable with respect to pre-existing Indebtedness relating to any Person, business or assets acquired by the Borrower or such Restricted Subsidiary, as the case may be; provided that (i) after giving effect to such acquisition and such Indebtedness (on a pro forma basis as if such acquisition and the incurrence of such Indebtedness had occurred on the first day of the applicable Reference Period for purposes of Section 6.29), no condition or event shall exist which constitutes an Event of Default or Default, (ii) such Indebtedness was not incurred in anticipation of the acquisition of such Person, business or assets, (iii) after giving effect to such Person becoming a Restricted Subsidiary, or the acquisition of such business or assets, the Borrower or such Restricted Subsidiary could incur at least $1.00 of additional Indebtedness in compliance with the requirements set forth in clauses (i) and (ii) of Section 6.01(f) and (iv) the acquisition of such Person, business or assets is permitted by all other applicable provisions of the Loan Documents, including Section 6.03 and Section 6.24;
(h) so long as no Event of Default or Default has occurred and is continuing, the Borrower and the Restricted Subsidiaries may become and remain liable with respect to Indebtedness evidenced by Funded Debt incurred for any refinancing, refunding or replacement of Indebtedness permitted pursuant to clause (a) or (m) of this Section 6.01; provided that (i) the aggregate principal amount of such Funded Debt shall not exceed the aggregate principal amount of such outstanding Indebtedness being refinanced, refunded or replaced together with any accrued interest and, in the case of Section 6.01(a), Make Whole Amount with respect thereto, (ii) such Funded Debt could be incurred in compliance with the requirements set forth in clause (i) of Section 6.01(f), (iii) if such Funded Debt is to be secured under the Collateral Documents as provided in Section 6.02(h), such Funded Debt is incurred pursuant to an agreement or instrument which complies with the requirements set forth in clause (iii) of the proviso to Section 6.01(b), (iv) such Funded Debt shall not mature prior to the stated maturity of the Indebtedness being refinanced, refunded or replaced, (v) such Funded Debt shall be secured on a pari passu basis with the Indebtedness secured by the Collateral Documents, (vi) such Funded Debt shall have an Average Life equal to or greater than the remaining Average Life of the Indebtedness being refinanced, refunded or replaced; and (vii) the proceeds of such Funded Debt are used to refinance, refund or replace such existing Funded Debt within 45 days after the incurrence of such Funded Debt (such proceeds are to be held in a bank account with the Administrative Agent (other than an account subject to the Cash Collateral Agreement) and such proceeds shall be remitted to the Borrower only upon delivery to the Administrative Agent by the Borrower of a certificate certifying that such proceeds will be used solely to refinance, refund or replace existing Funded Debt pursuant to this Section 6.01(h)), provided further, that such Funded Debt incurred pursuant to this clause (h) shall not be deemed to be outstanding Indebtedness of the Borrower for any purpose during the 45-day or lesser period referred to above while such proceeds are held by the Administrative Agent so long as such proceeds of such Funded Debt are placed in such account at the time of incurrence and applied to such refinancing, refunding or replacement within the 45-day period;
(i) so long as no Event of Default or Default has occurred and is continuing, the Borrower and the Restricted Subsidiaries may become and remain liable with respect to unsecured Indebtedness incurred for any extension, renewal, refunding, refinancing or replacement of Indebtedness permitted pursuant to subdivisions (a), (b), (f) or (g) of this Section 6.01; provided that (i) the principal amount of such unsecured Indebtedness to be incurred shall not exceed the principal amount of such Indebtedness being extended, renewed or refunded together with any accrued interest and, in the case of Section 6.01(a), Make Whole Amount with respect thereto, (ii) such unsecured Indebtedness to be incurred shall not mature prior to the stated maturity of such Indebtedness being extended, renewed or refunded, (iii) such unsecured Indebtedness to be incurred shall have an Average Life equal to or greater than the remaining Average Life of such Indebtedness being extended, renewed or refunded and (iv) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to any such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by for any Loan Party in respect extension, renewal, refunding or replacement of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect permitted pursuant to reimbursement-type obligations regarding workers compensation claims;
subdivision (g) of this Section 6.01, such Indebtedness incurred by any Loan Party in respect of accounts payable therefor shall be permitted only to trade creditors for goods and services and current operating liabilities (not the result extent, if any, that the total principal amount thereof to be incurred exceeds the aggregate amount of the borrowing unused Tranche B Revolving Credit Commitments on the date of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agentincurrence;
(j) unsecured Indebtedness (other than for borrowed money) that the Borrower may be deemed to exist pursuant create and become liable with respect to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan PartiesHedging Agreements and Commodity Hedging Agreements;
(k) any Restricted Subsidiary may become and remain liable with respect to Indebtedness in respect of evidenced by the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the ObligationsCollateral Documents;
(l) other the Borrower may become and remain liable with respect to unsecured IndebtednessIndebtedness owing to a Seller in connection with the acquisition of an Acquired Business Entity from such Seller, provided that that, (i) the aggregate principal amount of such Indebtedness matures of the Borrower at any time shall not less than one hundred eighty exceed $5,000,000, and (180ii) days following the Last Out Maturity Dateaggregate Consolidated Cash Flow generated by such Acquired Business Entity for so long as such Indebtedness is outstanding shall exceed the aggregate amount of all principal and interest that will become due and payable on such Indebtedness until such Indebtedness is repaid in full; and
(m) the 2021 Preferred Stock on terms reasonably acceptable Borrower and the Restricted Subsidiary may become and remain liable with respect to Indebtedness evidenced by the Administrative Agent Parity Debt Credit Agreement, provided, that, no Indebtedness shall be incurred under such Parity Debt Credit Agreement unless such Indebtedness is incurred within the limitations of Section 6.01(b) or Section 6.01(f). Notwithstanding the foregoing, (I) the aggregate principal amount of all Indebtedness of all Restricted Subsidiaries at any time outstanding (other than Indebtedness secured by the Collateral Documents) shall not exceed $10,000,000 (plus the Star/Petro Intercompany Subordinated Debt) and (II) neither the Borrower nor any of the Restricted Subsidiaries shall, directly or indirectly, incur any Indebtedness to be used directly or indirectly to renew, refund or refinance Facility A in its sole discretionwhole or in part. For purposes the purpose of determining compliance with this Section 7.036.01, all Obligations outstanding under any Person becoming a Restricted Subsidiary after the Loan Documents will date of this Agreement shall be deemed to have been incurred in reliance only on become liable with respect to all of its then outstanding Indebtedness at the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary hereintime it becomes a Restricted Subsidiary, no Loan Party shall have outstandingand any Person extending, create renewing or incur refunding any Indebtedness owing shall be deemed to have become liable with respect to such Indebtedness at the time of such extension, renewal or refunding. The Borrower or any Restricted Subsidiary shall be deemed to have become liable with respect to any other Loan Party Indebtedness securing any real property acquired by the Borrower or any Affiliate or employee such Restricted Subsidiary, as the case may be, at the time of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentacquisition.
Appears in 1 contract
Indebtedness. Create, incur, assume No Subsidiary will in any manner owe or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):be liable for Indebtedness except:
(a) the Obligations of and the Loan Parties under the Loan Documents364-Day Credit Agreement Obligations;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable Subsidiary owing to the obligor thereon Borrower or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromanother Subsidiary;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates(i) bonds that are performance bonds, foreign exchange rates or commodities pricing risks incurred bid bonds, appeal bonds, surety bonds and similar obligations, in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created each case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business, (ii) undrawn letters of credit and (iii) Guarantees in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other which no claim has been made by the beneficiary thereunder; provided that aggregate Indebtedness with permitted under clauses (ii) and (iii) of this Section 7.01(c) shall not exceed $300,000,000 at any one time outstanding.
(d) Indebtedness in respect to reimbursementfuture payment for non-type obligations regarding workers compensation claimscompetition covenants and similar payments under agreements governing an acquisition, merger or consolidation by a Subsidiary;
(e) Indebtedness of any Person that becomes a Subsidiary after the date hereof, incurred prior to the time such Person becomes a Subsidiary, that is not created in contemplation of or in connection with such Person becoming a Subsidiary and that is not assumed or Guaranteed by any other Subsidiary; and Indebtedness secured by a Lien on property acquired by a Subsidiary, incurred prior to the acquisition thereof by such Subsidiary, that is not created in contemplation of or in connection with such acquisition and that is not assumed or Guaranteed by any other Subsidiary; and Indebtedness refinancing (but not increasing the principal amount thereof, except by an amount equal to amounts paid for any accrued interest, breakage, premium, fees and expenses in connection with such refinancing) the Indebtedness described in this clause (e); provided that this clause (e) shall not apply to Unrestricted Subsidiaries that are designated as Subsidiaries pursuant to Section 6.09(a);
(f) Indebtedness existing on the Closing Date which is described on Schedule 7.01 and any renewals or extensions thereof (but not increasing the principal amount thereof, except by an amount equal to amounts paid for any accrued interest, breakage, premium, fees and expenses in connection with such refinancing);
(g) Indebtedness incurred unsecured Guarantees by any Loan Party in respect Subsidiary of accounts payable to trade creditors for goods and services and current operating liabilities (not the result Indebtedness of the borrowing of money) incurred in Borrower not prohibited by the ordinary course of business in accordance with customary terms and paid within Loan Documents so long as the specified time, unless contested in good faith by appropriate proceedings and reserved for Obligations are Guaranteed on substantially in accordance with GAAPthe same terms;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by arising under a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity DateQualified Securitization Financing; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.
Appears in 1 contract
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of the Loan Parties Indebtedness under the Loan Documents;
(b) Surviving Indebtedness outstanding on the date hereof as shown on the financial statements of Borrower provided to the Administrative Agent (which, in the case of each item of Indebtedness in excess of $1,000,000 is also listed on Schedule 7.03(b)7.02) and any refinancings, but not any extensionsrefundings, replacements, renewals or replacements extensions thereof; provided that the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable by an amount equal to the obligor thereon a reasonable premium or to the Lenders than the Indebtedness being refinanced or extendedother reasonable amount paid, and the average life to maturity thereof is greater than or fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to that any existing commitments unutilized thereunder, as a result of the Indebtedness being refinanced or extended; providedin connection with such refinancing, such Indebtedness permitted under the immediately preceding clause (i) refunding, renewal or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromextension;
(c) Guarantees of the Borrower and any of its Subsidiaries in respect of (i) the Revolving Credit Agreement, and in respect of any refinancings, refundings, replacements, renewals or extensions thereof provided that the aggregate principal amount of the related lending commitments are not increased to an amount which is in excess of $150,000,000, and of Swap Contracts and other related obligations of the Guarantor to the extent permitted under the Revolving Credit Agreement, up to $750,000,000, and (ii) Indebtedness otherwise permitted hereunder of the Borrower and its Subsidiaries;
(d) Indebtedness in respect of Capitalized Leases, Synthetic Lease Obligations and purchase money obligations for fixed or capital assets within the limitations set forth in Section 7.01(h); provided, however, that the aggregate amount of all such Indebtedness at any one time outstanding shall not exceed $5,000,000;
(e) Swap Contracts consisting of foreign currency transactions having a tenor of not more than 60 days, and other Swap Contracts with respect to Capital Leases and purchase money Indebtedness in an aggregate notional amount not in excess of the amount of the Loans; and
(f) unsecured Indebtedness in an aggregate principal amount not to exceed $1,000,000 in the aggregate 5,000,000 at any time outstanding; provided that . For purposes of this Section 7.02, any such item of Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall incurred under this Section will be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, separately valued for exchange rate purposes as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect date of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course its incurrence and no Event of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the Default shall result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to under this Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment solely as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentforeign currency movements thereafter.
Appears in 1 contract
Sources: Credit Agreement (International Rectifier Corp /De/)
Indebtedness. CreateCompany shall not permit its Subsidiaries which are not Subsidiary Guarantors to, directly or indirectly, create, incur, assume or suffer guaranty, or otherwise become or remain directly or indirectly liable with respect to, any Indebtedness in excess of an aggregate amount equal to exist any Indebtedness15% of Consolidated Net Worth of Company as of the last day of the most recently ended Fiscal Quarter for all such non-Subsidiary Guarantors, except the following, without duplication (which constitutes “Permitted Indebtedness”):
(a) Obligations of the Loan Parties under the Loan Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;for:
(i) Indebtedness existing on the date hereof and set forth in Schedule 7.1 and any refinancing, extension or renewals thereof to the extent the principal amount of such Indebtedness is not increased (i) any Loan Party owing except by an amount equal to any the unpaid accrued interest and premium thereon or other Loan Party amounts paid, and fees and expenses incurred, in connection with such refinancing, extension or renewal), and neither the final maturity nor the weighted average life to maturity of such Indebtedness is decreased;
(ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary under intercompany loans made to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced Subsidiary by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes Company or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral AgentSubsidiary;
(jiii) unsecured Indebtedness up to an aggregate of $1.5 billion incurred in connection with a Permitted Receivables Transaction;
(other than for borrowed moneyiv) that Indebtedness which may be deemed to exist pursuant with respect to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan PartiesHedge Agreements;
(kv) Indebtedness that may exist in respect of the convertible notes; provided that, all deposits or payments made by customers or clients of such Subsidiaries;
(vi) Indebtedness owed in respect of any netting services, overdrafts and related liabilities arising from treasury, depository and cash management services or in connection with any automated clearing-house transfers of funds;
(vii) Indebtedness up to an aggregate of $200,000,000 incurred in connection with or as a component of the convertible notes shall be unsecured purchase price of any property or that was existing on any property or any Person acquired by such Subsidiary at the time of acquisition thereof and subordinated assumed in right of payment to the payment in full connection with such acquisition (other than Indebtedness issued in connection with, or in anticipation of, such acquisitions), and any payment as a result of refinancing, extension or renewals thereof to the conversion extent the principal amount of such convertible notes into Equity Interests of Parent) Indebtedness is not increased (except by an amount equal to the Obligations;
(l) unpaid accrued interest and premium thereon or other unsecured Indebtednessamounts paid, provided that and fees and expenses incurred, in connection with such refinancing, extension or renewal), and neither the final maturity nor the weighted average life to maturity of such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Dateis decreased; and
(mviii) Indebtedness incurred in connection with any Debt Offering that reduces the 2021 Preferred Stock term loan commitments under the Bridge Facility Credit Agreement; provided that each issuer or guarantor of such Indebtedness becomes a Loan Party on terms reasonably acceptable or prior to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Term Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative AgentFunding Date.
Appears in 1 contract
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Indebtedness among the Borrower and its Subsidiaries, which Indebtedness shall (i) in the case of Indebtedness owed the Borrower, constitute Pledged Debt to the extent such Indebtedness is evidenced by an Instrument (as defined in the Security Agreement) and (ii) in the case of Indebtedness of any Loan Party to any Subsidiary that is not a Loan Party, be subordinated to the Obligations of on terms reasonably acceptable to the Loan Parties Administrative Agent (“Intercompany Debt”);
(b) Indebtedness under the Loan Documents;
(bc) Surviving Indebtedness outstanding on the date hereof and listed on Schedule 7.03(b)7.02 and any refinancings, but not any extensionsrefundings, renewals or replacements of such Indebtedness except extensions thereof (i) renewals and extensions expressly provided for in without increasing, or shortening the agreements evidencing any such Indebtedness as maturity of, the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured thereof except as permitted by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such assetthis Agreement);
(d) Indebtedness of the SBA PPP LoanBorrower or any Subsidiary in respect of the performance of bids, tenders, trade contracts (other than for borrowed money), performance bonds and other obligations of a like nature incurred in the ordinary course of business, and Guarantees of Indebtedness incurred thereof by the Borrower or any of its Subsidiaries; provided, however, that the aggregate amount of all such Indebtedness incurred under this clause (d) that is secured by Liens permitted by Sections 7.01(f) and 7.01(r) may not exceed $20,000,000 at any time outstanding;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest ratesCapitalized Leases, foreign exchange rates Synthetic Lease Obligations and purchase money obligations for fixed or commodities pricing risks incurred capital assets within the limitations set forth in Section 7.01(i); provided, however, that the ordinary course aggregate amount of business and all such Indebtedness at any time outstanding (including any such Indebtedness outstanding on the date hereof) shall not for speculative purposesexceed $30,000,000 at any time outstanding;
(f) unsecured Indebtedness issued by the Borrower, any other Borrower or any Subsidiary; provided that (i) immediately prior to and after giving effect to the issuance of such Indebtedness, there would be no Default under this Agreement, (ii) the scheduled maturity of such Indebtedness is no earlier than 91 days after the Maturity Date, (iii) such Indebtedness does not require any scheduled repayments, defeasance or redemption (or sinking fund therefor) of any principal amount thereof prior to the date that is 91 days after the Maturity Date (other than customary offers to purchase with proceeds of asset sales or upon the occurrence of a change of control), (iv) no indenture or other agreement governing such Indebtedness contains (A) maintenance financial covenants or (B) covenants or events of default that are more restrictive in any material respect, taken as a whole, to the Borrower and its Subsidiaries than market terms for comparable issuers and issuances at the time of incurrence or issuance thereof, (v) such Indebtedness shall be subordinated to the Obligations on terms acceptable to the Administrative Agent and (vi) the aggregate principal amount of Indebtedness incurred by under this clause (f) at any Loan Party in respect time outstanding shall not exceed the greater of letters (i) $50,000,000 and (ii) an amount so long as on a Pro Forma Basis, the Consolidated Leverage Ratio (calculated as of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course last day of business, including in respect the most recently completed Measurement Period prior to such incurrence of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect Indebtedness) is 0.50 less than the maximum Consolidated Leverage Ratio permitted pursuant to reimbursement-type obligations regarding workers compensation claimsSection 7.11(b) at the time of such incurrence;
(g) Indebtedness incurred of any Foreign Subsidiary in an aggregate principal amount not to exceed $10,000,000 at any time outstanding; provided that such Indebtedness is not guaranteed by the Borrower or any other Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith such guarantee is otherwise permitted by appropriate proceedings and reserved for substantially in accordance with GAAPSection 7.02(k));
(h) Indebtedness consisting in respect of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party Swap Contracts and Cash Management Agreements, in each case subject to the ordinary course of businesslimitations set forth in Section 7.16;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agentarising under Permitted Sale Leaseback Transactions;
(j) unsecured Indebtedness (other than for borrowed money) of any Person that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business becomes a Subsidiary of the Loan PartiesBorrower after the date hereof in a transaction permitted hereunder in an aggregate principal amount not to exceed $20,000,000; provided that such Indebtedness is existing at the time such Person becomes a Subsidiary of the Borrower and was not incurred solely in contemplation of such Person’s becoming a Subsidiary of the Borrower;
(k) Indebtedness in respect other Guarantees incurred by the Borrower or any of its Subsidiaries of obligations of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment Borrower or any Subsidiary to the payment in full extent such obligations are permitted to be incurred hereunder and, with respect to a Guarantee of any such obligations of any non-Loan Party Subsidiary, such Guarantee is otherwise permitted by Section 7.03(c) or (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;l); and
(l) other unsecured Indebtedness, provided that such additional Indebtedness matures not less than one hundred eighty (180) days following of the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party Borrower or any Affiliate or employee of its Subsidiaries in an aggregate principal amount (for the Borrower and all Subsidiaries) not to exceed $30,000,000 at any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agenttime outstanding.
Appears in 1 contract
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):
(a) Obligations No Borrower does and shall hereafter have any Indebtedness with the exceptions of:
(i) Any Indebtedness on account of the Revolving Credit or under any of the Loan Parties under the Loan Documents;.
(bii) Surviving The 6.75% Senior Unsecured Notes.
(iii) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business.
(iv) Indebtedness listed on Schedule 7.03(b)incurred in connection with the acquisition after the date hereof of any real or personal property by such Borrower or under any Capitalized Lease, but not any extensions, renewals or replacements provided that the aggregate principal amount of such Indebtedness except (i) renewals and extensions expressly provided for incurred by the Borrowers in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above fiscal year shall not (A) include Indebtedness exceed the aggregate amount of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;$10,000,000.
(cv) The Indebtedness with respect to Capital Leases and purchase money (if any) listed on SCHEDULE 4.7, annexed hereto.
(vi) additional Indebtedness in an amount not to exceed the principal sum of $1,000,000 20,000,000 provided that the terms of such Indebtedness are reasonably acceptable to the Agent and the Majority Lenders. 55 -48-
(vii) obligations in connection with any sale or leaseback transaction not to exceed $10,000,000 a year.
(viii) any guaranty by a Borrower of any indebtedness of another Borrower permitted by this Section 4.7.
(ix) any extensions of maturity, refinancing or other modification of the aggregate at terms of any time outstandingIndebtedness permitted under this Section 4.7(iv), (v) and (vii); provided that any such extension, refinancing or modification (1) is pursuant to terms that are not less favorable to the Borrowers than the terms of the Indebtedness being extended, refinanced or modified, and (x2) in after giving effect to the case of additional Capital Leases extension, refinancing or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence modification of such Indebtedness, as the case may beamount of such Indebtedness outstanding is not greater than the amount of such Indebtedness outstanding immediately before such extension, and refinancing or modification.
(yb) in No Borrower will, nor will permit any of its Affiliates to, amend, supplement or otherwise modify the case terms of purchase money Indebtedness, shall constitute not less than 75% any of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates 6.75% Senior Unsecured Notes or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by prepay or repurchase any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.026.75% Senior Unsecured Notes; provided, thathowever, the Borrowers may spend up to $1,725,000 per fiscal year to repurchase 6.75% Senior Unsecured Notes; provided, further, if at all times during a fiscal year Maximum Availability is in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject excess of $25,000,000, the Borrowers may spend an additional $775,000 per fiscal year to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentrepurchase 6.75% Senior Unsecured Notes.
Appears in 1 contract
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of Indebtedness existing on the Loan Parties under the Loan Documents;
(b) Surviving Indebtedness listed on Effective Date and set forth in Schedule 7.03(b)6.01, but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement Effective Date and (ii) refinancings and extensions of any such Indebtedness if the interest rate with respect thereto and other terms and conditions thereof are not no less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, extended and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, PROVIDED that such Indebtedness permitted under the immediately preceding clause (i) or clause (ii) above shall not be (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount which exceeds the Indebtedness being renewed, extended or refinanced, refinanced or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(cb) Indebtedness created hereunder, under the Tranche C Facility Credit Agreement and under the other Loan Documents; PROVIDED that no principal amount of Indebtedness under any Local Facility described in clause (b) of the definition of "Local Facility" may be incurred unless the Tranche A Exposure shall be simultaneously and permanently reduced by an aggregate amount not less than such principal amount; PROVIDED FURTHER that, with respect to Capital Leases and purchase money Indebtedness in an under the Tranche C Facility Credit Agreement, (i) the principal amount of such Indebtedness shall not to exceed $1,000,000 210,000,000, (ii) no Guarantor shall Guarantee the Obligations under the Tranche C Facility Credit Agreement unless it shall also Guarantee on a PARI PASSU basis the Obligations under this Agreement and (iii) if any additional or more restrictive representation, warranty, covenant, condition, event of default or other term shall be contained in the aggregate at any time outstanding; provided Tranche C Facility Credit Agreement, the Borrower agrees that such additional or more restrictive representation, warranty, covenant, condition, event of default or other term shall be incorporated herein (and, to the extent that any such Indebtedness additional or more restrictive term shall subsequently be amended to be less restrictive, such amendment shall also be incorporated herein);
(xi) in the case of additional Capital Leases or purchase money IndebtednessUCAR, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtednessany Senior Subordinated Guarantee, as the case may be, and (yii) in the case of purchase money Indebtednessthe Borrower, shall constitute Senior Subordinated Notes in an aggregate principal amount (the "SUBORDINATED PRINCIPAL") not to exceed the sum of (A) $200,000,000 and (B) the aggregate principal amount of Senior Subordinated Notes issued after the Second Closing Date in payment of interest thereon pursuant to the terms thereof (less than 75% the principal amount of any Senior Subordinated Notes that is repaid after the Second Closing Date) and (iii) in the case of the Borrower, Refinancing Notes in an aggregate consideration paid principal amount not to exceed the sum at the time immediately prior to issuance and refinancing of (A) the Subordinated Principal, (B) any premium payable and reasonable expenses incurred in connection with respect to such assetrefinancing and (C) if the Refinancing Notes are issued at a time when there is accrued but unpaid interest on the Subordinated Principal, the amount of such accrued but unpaid interest;
(d) Indebtedness of the SBA PPP LoanBorrower and the Subsidiaries pursuant to Interest/Exchange Rate Protection Agreements entered into in order to fix the effective rate of interest, or to hedge against currency fluctuations, on the Loans and other Indebtedness or to hedge against currency fluctuations with respect to purchases and sales of goods in the ordinary course, in each case, PROVIDED that such transactions shall be entered into for business purposes and not for the purpose of speculation;
(e) Indebtedness in respect of Swap Contracts designed owed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party including obligations in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in credit for the ordinary course of business, including in respect of workers compensation claimsbenefit of) any person providing worker's compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or self-insurance any Subsidiary, pursuant to reimbursement or other Indebtedness with respect indemnification obligations to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of businesssuch person;
(i) Indebtedness of (i) the Borrower or any Loan Party owing Wholly Owned Subsidiary that is a Guarantor to any other Loan Party and Subsidiary or to the Borrower; (ii) Indebtedness owed by a of the Borrower or any Wholly Owned Subsidiary that is not a Guarantor to any Subsidiary; (iii) Indebtedness of any Subsidiary to any Loan Party the Borrower or another Subsidiary incurred pursuant to a Permitted Foreign Transfer (subject in the case of Specified Permitted Transactions to the extent such limitations set forth in Section 6.04(k)); and (iv) so long as at the time of incurrence no Default or Event of Default shall have occurred and be continuing, Indebtedness is of UCAR to the Borrower incurred for the purpose of making permitted as investments in Unrestricted Subsidiaries (and in an Investment pursuant amount limited to Section 7.02; provided, thatthe amount of investments so permitted), in each case subject to compliance with the provisions of the Pledge Agreements to the extent applicable to such Indebtedness;
(Ag) Indebtedness of the Borrower or a Subsidiary which represents the assumption by the Borrower or such Subsidiary of Indebtedness of a Subsidiary in connection with the permitted merger of such Subsidiary with or into the assuming person or the purchase of all or substantially all the assets of such Subsidiary;
(h) Indebtedness of the Borrower or any Subsidiary in respect of performance bonds, bid bonds, appeal bonds, surety bonds and similar obligations and trade-related letters of credit, in each case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business, and any extension, renewal or refinancing thereof to the extent not provided to secure the repayment of other Indebtedness and to the extent that the amount of refinancing Indebtedness is not greater than the amount of Indebtedness being refinanced;
(i) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; PROVIDED that such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right is extinguished within two Business Days of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agentits incurrence;
(j) unsecured Indebtedness of a Subsidiary acquired after the date hereof and Indebtedness of a corporation merged or consolidated with or into the Borrower or a Subsidiary after the date hereof, which Indebtedness in each case exists at the time of such acquisition, merger, consolidation or conversion into a Subsidiary and is not created in contemplation of such event and where such acquisition, merger or consolidation is permitted by this Agreement, PROVIDED that the aggregate principal amount of Indebtedness under this paragraph (other than j) shall not exceed $25,000,000 for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan PartiesBorrower and all Subsidiaries;
(k) Capital Lease Obligations, mortgage financings and purchase money Indebtedness incurred by the Borrower or any Subsidiary prior to or within 270 days after a Capital Expenditure permitted under Section 6.10 in order to finance such Capital Expenditure, and extensions, renewals and refinancings thereof if the interest rate with respect thereto and other terms thereof are no less favorable to the Borrower or such Subsidiary than the Indebtedness being refinanced and the average life to maturity thereof is greater than or equal to that of the convertible notesIndebtedness being refinanced; provided that, all PROVIDED that such refinancing Indebtedness in shall not be (i) Indebtedness of an obligor that was not an obligor with respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment Indebtedness being extended, renewed or refinanced, (ii) in full a principal amount which exceeds the Indebtedness being renewed, extended or refinanced or (other than iii) incurred, created or assumed if any payment as a Default or Event of Default has occurred and is continuing or would result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligationstherefrom;
(l) Capital Lease Obligations incurred by the Borrower or any Subsidiary in respect of any Sale and Leaseback Transaction that is permitted under Section 6.03;
(m) other unsecured IndebtednessIndebtedness of the Borrower and the Subsidiaries in an aggregate principal amount at any time outstanding not in excess of $100,000,000, provided that such $20,000,000 of which may be incurred on a secured basis;
(n) Indebtedness matures not less than one hundred eighty (180) days following of UCAR consisting of contingent liabilities or Indebtedness of the Last Out Maturity Datetype referred to in the proviso contained in the definition of "Unrestricted Subsidiary"; and
(mo) the 2021 Preferred Stock all premium (if any), interest (including post-petition interest), fees, expenses, indemnities, charges and additional or contingent interest on terms reasonably acceptable to the Administrative Agent obligations described in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause clauses (a) of this Section 7.03through (n) above. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create in this Agreement or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee Document, no Refinancing Notes shall be issued (and no Indebtedness shall be incurred under the Refinancing Note Indenture) unless: (a) concurrently with the issuance of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated Refinancing Notes, Senior Subordinated Notes in a principal amount equal to the Loans principal amount of such Refinancing Notes (less any amount issued pursuant to clause (iii)(B) or (iii)(C) of paragraph (c) above) shall have been redeemed or repurchased (or called for redemption, so long as the redemption price has been indefeasibly deposited with the trustee in respect of such Senior Subordinated Notes (the "TRUSTEE")) and cancelled upon delivery to the Trustee, at a price not in excess of 100% of the principal amount thereof (plus interest accrued to the date of redemption or repurchase and not paid in cash and plus any premium in respect of such redemption or repurchase (so long as the premium on repurchase does not exceed 104.5%, or if lower at the time such repurchase is made, the scheduled premium set forth in the Senior Subordinated Indenture)), (b) the terms of the Refinancing Notes and the Refinancing Note Indenture (other Obligations in a manner than the interest rate, the interest payment dates and on terms any redemption premiums, which shall be determined at the time of issuance of the Refinancing Notes) shall be reasonably satisfactory to the Administrative AgentRequired Lenders (PROVIDED, HOWEVER, that such terms of the Refinancing Notes and the Refinancing Note Indenture shall be deemed to be satisfactory to the Required Lenders if the Refinancing Notes are issued with substantially the same terms as the Senior Subordinated Notes that are being refinanced (other than any changes thereto that are not adverse in any respect to the interests of the Lenders)), (c) the interest rate of the Refinancing Notes shall be a fixed, non-increasing interest rate per annum not in excess of the rate payable in respect of the Senior Subordinated Notes, payable on a principal amount of the Refinancing Notes not in excess of the gross proceeds of the sale thereof and interest on the Refinancing Notes shall be payable semiannually and (d) the Refinancing Notes shall mature not earlier than the maturity date of the Senior Subordinated Notes.
Appears in 1 contract
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):Indebtedness except:
(a) Obligations of the Loan Parties under the Loan DocumentsObligations;
(b) Surviving Indebtedness listed on Schedule 7.03(band obligations owing under Hedge Agreements entered into in order to manage existing or anticipated risks (including risks related to interest rates, exchange rates, commodity prices, stock prices, equity indexes, bonds and/or convertible bonds (which may include call options, warrants and other derivatives), but ) and not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromspeculative purposes;
(c) Indebtedness existing on the Closing Date and listed on Schedule 9.1, and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof;
(d) Indebtedness incurred in connection with respect to Capital Leases and purchase money Indebtedness in an aggregate principal amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness outstanding the greater of (xi) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, $35,000,000 and (yii) in the case of purchase money Indebtedness, shall constitute not less than 752.5% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP LoanConsolidated Total Assets;
(e) Indebtedness of a Person existing at the time such Person became a Subsidiary or assets were acquired from such Person in connection with an Investment permitted pursuant to Section 9.3, to the extent that (i) such Indebtedness was not incurred in connection with, or in contemplation of, such Person becoming a Subsidiary or the acquisition of such assets, (ii) neither the Borrower nor any Subsidiary thereof (other than such Person or any other Person that such Person merges with or that acquires the assets of such Person) shall have any liability or other obligation with respect to such Indebtedness and (iii) the aggregate outstanding principal amount of Swap Contracts designed such Indebtedness does not exceed $25,000,000 at any time outstanding;
(f) Guarantees with respect to hedge against interest rates(i) Indebtedness permitted pursuant to subsections (a) through (e), foreign exchange rates or commodities pricing risks incurred (n) and (o) of this Section and (ii) contractual obligations of Subsidiaries entered into in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsconstituting borrowed money;
(g) unsecured intercompany Indebtedness incurred by between or among any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing Borrower or any Subsidiaries; provided that immediately before and immediately after giving effect to the incurrence of moneysuch Indebtedness (i) incurred no Default or Event of Default shall have occurred and be continuing and (ii) the Borrower is in compliance with the ordinary course Consolidated Leverage Ratio and the Consolidated Fixed Charge Coverage Ratio, in each case, calculated on a pro forma basis (as of business in accordance with customary terms the most recent Fiscal Quarter end preceding the date of the proposed Indebtedness for which financial statements are available and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPafter giving effect to such Indebtedness);
(h) Indebtedness consisting arising from the honoring by a bank or other financial institution of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party a check, draft or other similar instrument drawn against insufficient funds in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing under performance bonds, surety bonds, release, appeal and similar bonds, statutory obligations or with respect to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, thatworkers’ compensation claims, in each case (A) all such Indebtedness shall be evidenced by promissory notes incurred in the ordinary course of business, and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated reimbursement obligations in right respect of payment to the payment in full any of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agentforegoing;
(j) unsecured Indebtedness consisting of promissory notes issued to current or former officers, directors and employees (or their respective family members, estates or trusts or other than entities for borrowed moneythe benefit of any of the foregoing) that may be deemed of the Borrower or its Subsidiaries to exist pursuant purchase or redeem Capital Stock or options of the Borrower in an aggregate principal amount not to exceed $5,000,000 at any bona fide warranty or contractual service obligations or performance time outstanding;
(k) Indebtedness incurred in the ordinary course of business in connection with the financing of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligationsinsurance premiums;
(l) Indebtedness for bank products (including cash management services and commercial credit cards) incurred in the ordinary course of business;
(m) obligations under take or pay contracts entered into with suppliers and manufacturers;
(i) unsecured Indebtedness issued by the Borrower or any other Credit Party with a maturity not earlier than ninety-one (91) days after the Maturity Date and (ii) unsecured IndebtednessIndebtedness issued by the Borrower or any other Credit Party with a maturity earlier than the Maturity Date in an aggregate principal amount not to exceed $75,000,000 at any time; provided that, provided that in each case of clauses (i) and (ii), immediately before and immediately after giving effect to the incurrence of such Indebtedness matures not less than one hundred eighty (180A) days following no Default or Event of Default shall have occurred and be continuing and (B) the Last Out Maturity DateBorrower is in compliance with the Consolidated Leverage Ratio and the Consolidated Fixed Charge Coverage Ratio, in each case, calculated on a pro forma basis (as of the most recent Fiscal Quarter end preceding the date of incurrence for the proposed Indebtedness for which financial statements are available and after giving effect to such Indebtedness); and
(mo) the 2021 Preferred Stock on terms reasonably acceptable Indebtedness of any Credit Party or any Subsidiary thereof not otherwise permitted pursuant to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations in an aggregate principal amount not to exceed at any time outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause greater of (ai) $35,000,000 or (ii) 2.5% of this Section 7.03Consolidated Total Assets. Notwithstanding anything to the contrary hereincontained in this Agreement, no Loan Party shall have outstanding, create Indebtedness incurred in reliance on the Consolidated Total Assets test in Section 9.1(d) or incur Section 9.1(o) will remain permitted notwithstanding any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless subsequent change in Consolidated Total Assets that would otherwise result in such Indebtedness is expressly no longer being permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentif incurred following such change.
Appears in 1 contract
Sources: Credit Agreement (Cirrus Logic Inc)
Indebtedness. CreateThe Borrower will not, and will not permit any of its Subsidiaries to, contract, create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(ai) Obligations of Indebtedness incurred pursuant to this Agreement and the Loan Parties under the Loan other Credit Documents;
(bii) Surviving Existing Indebtedness shall be permitted to the extent the same is listed on Schedule 7.03(b)III of this Agreement, but not together with any extensions, renewals or replacements refinancing thereof, so long as (x) the amount of such refinancing Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of incurred pursuant to this Agreement and clause (ii) refinancings and extensions of any such Indebtedness if does not exceed the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that principal amount of the Indebtedness being refinanced or extended; provided, at the time of such refinancing and (y) the terms of such refinancing Indebtedness permitted under the immediately preceding incurred pursuant to this clause (i) or (ii) above shall not (A) include Indebtedness are no more restrictive in any material respect as applied to the Borrower or any of an obligor that was not an obligor with respect to its Subsidiaries than the terms of the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(ciii) accrued expenses and current trade accounts payable incurred in the ordinary course;
(iv) general unsecured Indebtedness with respect to Capital Leases and purchase money Indebtedness of the Borrower in an aggregate principal amount not to exceed $1,000,000 in the aggregate 2,000,000 at any one time outstanding; ;
(v) Indebtedness (including, without limitation, Capitalized Lease Obligations) subject to Liens permitted under Section 8.01(vii) not to exceed $500,000 at any one time outstanding;
(vi) Indebtedness of the Borrower or any of its Subsidiaries subject to Liens permitted under Section 8.01(viii) not to exceed 90% of the fair market value (as determined in good faith by the Board of Directors of the Borrower) of the Real Property at the time such Real Property is made subject to such Lien, provided that any such Indebtedness (x) except in the case of additional Capital Leases or purchase money Indebtednessthe Gramercy Financing, if entered into) the weighted average life to maturity of such Indebtedness shall not be secured by less than five years at the asset subject to such additional Capital Leases or acquired asset in connection with time of the incurrence of such Indebtedness;
(vii) Indebtedness under Interest Rate Protection Agreements, as provided that after giving effect to such Interest Rate Protection Agreements at all times thereafter the case may be, and (y) effective interest cost to the Borrower in the case respect of purchase money Indebtedness, shall constitute not less than 75at least 40% of the aggregate consideration paid with respect to such assetoutstanding principal amount of the Senior Notes shall be the fixed rate set forth therein;
(dviii) Indebtedness of any wholly-owned Subsidiary of the SBA PPP LoanBorrower to the Borrower or any other wholly-owned Subsidiary of the Borrower, to the extent permitted by Section 8.06(vi);
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(iix) Indebtedness of the Borrower under the Senior Notes in an aggregate principal amount not to exceed $85,000,000 (i) less any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right repayments of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Dateprincipal thereof); and
(mx) Indebtedness of the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding Borrower under the Loan Documents will be deemed Convertible Subordinated Debentures in an aggregate principal amount not to have been incurred in reliance only on exceed $2,200,000 (less any repayments of principal thereof after the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative AgentClosing Date).
Appears in 1 contract
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of the Loan Parties Indebtedness under the Loan Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except Borrower in respect of (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement Existing Subordinated Obligations and (ii) refinancings and extensions in respect of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any New Subordinated Obligations incurred when no Default or Event of Default has occurred and is remains continuing or would result therefrom, and provided that giving pro forma effect to the incurrence of New Subordinated Obligations as of the last day of the then most recently ended Fiscal Quarter, Borrower is in compliance with the financial covenants set forth in Article VII;
(c) other Indebtedness outstanding on the date hereof and listed on Schedule 7.03 and any refinancings, refundings, renewals or extensions thereof; provided that the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder;
(d) Contingent Obligations of the Borrower in respect of Indebtedness otherwise permitted hereunder;
(e) obligations (contingent or otherwise) of the Borrower or any Restricted Subsidiary existing or arising under Swap Contracts in respect of Indebtedness having an aggregate notional amount not in excess of $200,000,000;
(f) Indebtedness in respect of capital leases, Synthetic Lease Obligations and purchase money obligations for fixed or capital assets within the limitations set forth in Section 7.01(d); provided, however, that:
(i) the aggregate amount of all such Indebtedness secured by ▇▇▇▇▇ on personal property and fixtures located at or associated with the Las Vegas North Project or any Alternative Project at any one time outstanding shall not exceed $50,000,000; and
(ii) the aggregate amount of all other such Indebtedness at any one time outstanding shall not exceed $50,000,000; and
(g) Indebtedness permitted under Completion Guaranties permitted by Section 7.02(f)(iv);
(h) Indebtedness owed to and Contingent Obligations in favor of Borrower or any Restricted Subsidiary;
(i) Indebtedness consisting of Contingent Obligations of Restricted Subsidiaries doing business in the State of New Jersey with respect to Capital Leases and purchase money Indebtedness bonds issued by the Casino Reinvestment Development Authority in an aggregate amount not to exceed $1,000,000 5,000,000;
(j) Indebtedness in an aggregate outstanding principal amount not to exceed $20,000,000 at any time which was incurred by a Person prior to the acquisition of that Person by Borrower or its Restricted Subsidiaries and was not incurred in contemplation of such acquisition; and
(k) other unsecured Indebtedness of Borrower and its Restricted Subsidiaries in an aggregate principal amount not to exceed $25,000,000 at any time outstanding; provided further that the Borrower shall not permit (whether or not otherwise permitted under this Section) any such Restricted Subsidiary to create, incur, assume or suffer to exist any portion of the Indebtedness and Contingent Obligations permitted in this Section, except for (xi) Indebtedness and Contingent Obligations in existence on the Closing Date, (ii) its Guaranty, (iii) Indebtedness owed to, and Contingent Obligations in favor of, Borrower or another Restricted Subsidiary, (iv) Indebtedness permitted under Section 7.03(f) in the case respect of additional Capital Leases Property of or purchase money Indebtednessused by that Restricted Subsidiary, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be(v) Indebtedness under Section 7.03(i) and Section 7.03(j), and (yvi) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested an aggregate principal amount not in good faith by appropriate proceedings and reserved excess of $5,000,000 for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative AgentRestricted Subsidiary.
Appears in 1 contract
Sources: Credit Agreement (Aztar Corp)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of the Loan Parties Indebtedness under the Loan Documents;
Documents (b) Surviving Indebtedness listed on Schedule 7.03(b)including, but not any extensionswithout limitation, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in connection with the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness Ventas Purchase Option ABL Loans in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such principal amount of Converting ABL Loans immediately prior to the Ventas Purchase Option Assignment);
(b) Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect Borrowers and their Restricted Subsidiaries set forth in Schedule 8.03 (and renewals, refinancings and extensions thereof (not exceeding the principal amount of the Indebtedness so renewed, refinanced or extended) on terms and conditions not materially less favorable (taken as a whole) to such assetthe applicable debtor(s) or to the Lenders);
(c) intercompany Indebtedness permitted under Section 8.02;
(d) obligations (contingent or otherwise) of the SBA PPP Loan;
(e) Indebtedness in respect of Borrowers or any Restricted Subsidiary existing or arising under any Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred Contract entered into in the ordinary course of business and not for speculative purposes;
(fe) purchase money Indebtedness incurred by any Loan Party (including obligations in respect of letters Capital Leases or Synthetic Leases) hereafter incurred by the Borrowers or any of credittheir Restricted Subsidiaries to finance the purchase of fixed assets, bank guaranteesand renewals, bankers’ acceptancesrefinancings and extensions thereof; provided that (i) the total of all such Indebtedness for all such Persons taken together shall not exceed an aggregate principal amount of the greater of (A) $120,000,000 and (B) 40% of Consolidated EBITDA at any one time outstanding; (ii) such Indebtedness when incurred shall not exceed the purchase price of the asset(s) financed; and (iii) no such Indebtedness shall be refinanced for a principal amount in excess of the principal balance outstanding thereon at the time of such refinancing (other than for interest, warehouse receipts or similar instruments issued or created in the ordinary course of businesspremiums, including penalties and fees);
(f) Securitization Transactions (solely in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect Collateral of a type that would not constitute ABL Priority Collateral) in an aggregate principal amount at any one time outstanding not to reimbursement-type obligations regarding workers compensation claimsexceed the greater of (A) $75,000,000 and (B) 25% of Consolidated EBITDA;
(g) intercompany Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not under the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPLHP Cash Management Transfer System;
(h) Indebtedness consisting under performance bonds, surety bonds, letter of guarantees resulting from endorsement of negotiable instruments credit obligations to provide security for collection by any Loan Party workers’ compensation claims and bank overdrafts, in each case in the ordinary course of business;
(i) Indebtedness in the form of trade payables and accrued expenses incurred in the ordinary course of business;
(j) other Indebtedness in an aggregate principal amount not to exceed the greater of (iA) $100,000,000 and (B) 30% of Consolidated EBITDA at any Loan Party owing to one time outstanding;
(k) Indebtedness of the Borrowers or any other Loan Party and in the form of loans from the Captive Insurance Subsidiary in an aggregate principal amount at any time outstanding not to exceed twenty percent (ii20%) of the total assets of the Captive Insurance Subsidiary, as shown on the most recent balance sheet of the Captive Insurance Subsidiary in accordance with GAAP;
(l) Earn-Out Obligations not to exceed $10,000,000 in the aggregate at any one time outstanding;
(m) Guarantees by any Borrower or its Restricted Subsidiaries of Indebtedness owed permitted to be incurred by a such Borrower or Restricted Subsidiary in accordance with the provisions of this Agreement; provided that in the event such Indebtedness that is not a Guarantor Subsidiary to being Guaranteed is Subordinated Indebtedness, then any related Guarantee of any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral AgentLoans;
(jn) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance of the Loan Parties incurred in the ordinary course of business under financing arrangements related to the prepayment of premiums and deductibles under the Loan Parties’ insurance policies;
(ko) Indebtedness in respect of Non-Guarantor Restricted Subsidiaries, together with any Indebtedness incurred by Non-Guarantor Restricted Subsidiaries pursuant to Section 8.03(u) and to Section 8.03(v) below not to exceed the convertible notes; provided that, all such Indebtedness in respect greater of the convertible notes shall be unsecured (A) $100,000,000 and subordinated in right (B) 30% of payment to the payment in full (other than Consolidated EBITDA at any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligationsone time outstanding;
(lp) other unsecured Indebtedness(a) Indebtedness incurred pursuant to the Term Loan Facility by the Borrowers or any Loan Party in an aggregate principal amount of commitments, loans or letters of credit thereunder (without any duplication thereof) not to exceed the sum of (x) $825.0 million and (y) any incremental loan facilities permitted thereunder as in effect on the Closing Date; provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable is subject to the Administrative Agent terms of the Intercreditor Agreement in its sole discretion. For purposes the capacity of determining compliance with this Section 7.03“Term Loan Obligations” and (b) after consummation of the Ventas Purchase Option, all Obligations outstanding Indebtedness assigned to the Ventas Assignees under the Term Loan Documents will be deemed Facility in an amount equal to have been incurred the Ventas Purchase Option Term Loan Amount (as defined in reliance only the Term Loan Credit Agreement as in effect on the exception date hereof) (the “Ventas Purchase Option Term Loans”) (provided that the guarantees in clause (a) respect of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder by Parent, Borrowers and expressly Loan Parties thereunder shall be subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.Non-Ventas Purchase Option ABL Loans);
Appears in 1 contract
Indebtedness. CreateFurniture Brands will not, and will not permit any of its Subsidiaries to, contract, create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(ai) Obligations of Indebtedness incurred pursuant to this Agreement and the Loan Parties under the Loan other Credit Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any so long as no Default or Event of Default has occurred and is continuing then exists or would result therefrom, Permitted Indebtedness shall be permitted on terms and conditions set forth in the definition of Permitted Indebtedness;
(ciii) Indebtedness with respect outstanding on the Effective Date shall be permitted to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness extent (x) the same is listed on Schedule VI or (y) the aggregate principal amount of such Indebtedness does not exceed $500,000, in the case of each case, together with any refinancings or renewals thereof, so long as, in each such case, no additional Capital Leases obligors or purchase money Indebtednessguarantors, shall be secured by the asset subject to such additional Capital Leases or acquired asset security, is provided in connection with the incurrence of respective such Indebtedness, renewal or refinancing and so long as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute principal amount is not less than 75% of the aggregate consideration paid with respect to such assetincreased as a result thereof;
(div) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business accrued expenses and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of current trade accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(iv) Indebtedness under Interest Rate Protection Agreements entered into with respect to other Indebtedness permitted under this Section 10.03 so long as the entering into of such Interest Rate Protection Agreements are bona fide hedging activities and are not for speculative purposes;
(vi) Indebtedness of the Borrowers and their Subsidiaries evidenced by Capitalized Lease Obligations to the extent permitted pursuant to Section 10.01(v), and Indebtedness secured by Liens permitted under Section 10.01(vi); provided that in no event shall the aggregate principal amount of Capitalized Lease Obligations and other Indebtedness permitted by this clause (vi) exceed $20,000,000;
(vii) Indebtedness under Currency Hedging Agreements so long as (i) any Loan Party owing such Currency Hedging Agreement is reasonably related to income (in currencies other than Dollars) derived from foreign operations of the Borrowers or any Subsidiary (or any Foreign Sales Corporation) or otherwise related to purchases (in currencies other Loan Party than Dollars) permitted hereunder from foreign suppliers and (ii) such Currency Hedging Agreements do not exceed a notional amount equal to $30,000,000 in the aggregate at any one time;
(viii) intercompany Indebtedness owed by among the Borrowers and their Subsidiaries;
(ix) Indebtedness of a Subsidiary existing at the time of acquisition thereof by Furniture Brands or a Subsidiary thereof (or Indebtedness assumed at the time of such an acquisition of an asset securing such Indebtedness), provided that is (a) such Indebtedness was not a Guarantor Subsidiary to incurred in connection with, or in contemplation of, such acquisition and (b) any Loan Party to the extent Lien securing such Indebtedness is permitted as an Investment pursuant to under Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent10.01(vii);
(jx) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty in respect of bid, performance, advance payment or contractual service obligations or performance surety bonds entered into in the ordinary course of business of the Loan Partiesconsistent with past practices;
(kxi) Indebtedness in respect Contingent Obligations (a) of the convertible notes; provided that, all such Indebtedness in respect Borrowers or any of their Subsidiaries as a guarantor of the convertible notes shall be unsecured lessee under any lease pursuant to which the Borrower (or a Subsidiary) is the lessee so long as such lease is otherwise permitted hereunder, (b) of Furniture Brands constituting guarantees by Furniture Brands of trade payables owing by its Subsidiaries in their ordinary course of business, (c) of Furniture Brands and/or Thomasville consisting of guarantees (with the maximum amount guaranteed at any time pursuant to this clause (c) not to exceed $7,500,000 in the aggregate) of actual or potential claims under Environmental Laws referred to in Section 10.01(xiii)(y) and subordinated in right (d) of payment to the payment in full (other than Borrowers or any payment Subsidiary as a result guarantor of the conversion of such convertible notes into Equity Interests of Parent) lessee under any lease pursuant to which a third party is the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Datelessee; and
(mxii) the 2021 Preferred Stock on terms reasonably acceptable Contingent Obligations of Furniture Brands pursuant to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative AgentTax Sharing Agreements.
Appears in 1 contract
Sources: Credit Agreement (Furniture Brands International Inc)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):
(a) Obligations of the Loan Parties Borrower and its Subsidiaries under the Loan Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement Agreement, and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to (i) Capital Leases existing on the Closing Date as specified on Schedule 7.03(c) and (ii) additional Capital Leases incurred after the Closing Date and purchase money Indebtedness in an aggregate amount not to exceed $1,000,000 250,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(fe) Indebtedness incurred by the Borrower or any Loan Party of its Subsidiaries in respect of letters of credit, bank guarantees, bankers’ acceptances, performance bonds, surety bonds, in each case incurred in the ordinary course of business, and reimbursement obligations in respect of any of the foregoing, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance self‑insurance or other Indebtedness with respect to reimbursement-type reimbursement‑type obligations regarding workers compensation claims;
(gf) Indebtedness incurred by the Borrower or any Loan Party of its Subsidiaries in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(hg) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by the Borrower or any Loan Party of its Subsidiaries in the ordinary course of business;
(h) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Borrower or any of its Subsidiaries;
(i) (i) Indebtedness of (i) any Loan Party owing to any other Loan Party Party, (ii) [reserved] and (iiiii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and Documents, (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral AgentRequired Lenders, and (C) any payment by any Guarantor Subsidiary under any guaranty of the Obligations shall result in a pro rata reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan PartiesBorrower consisting of ABL Indebtedness in an aggregate principal amount not to exceed $15,000,000;
(k) Guarantee Obligations with respect to Indebtedness in respect permitted pursuant to clauses (a), (b), (c), (d), (e), (f) and (j) of this Section 7.03;
(l) the convertible notes; provided that, all such Indebtedness in respect Existing Letters of Credit and any replacement letters of credit issued by a replacement issuing bank after the convertible notes shall be unsecured Closing Date;
(m) pension withdrawal liability and subordinated in right of payment to the payment in full (other than any payment a leasehold guaranty incurred as a result of the conversion Chapter 7 bankruptcy proceedings of such convertible notes into Equity Interests ▇▇▇▇▇▇-▇▇▇▇▇▇ Custom Controls Holdings LLC in an aggregate amount not to exceed $5,900,000 (comprised of Parent) $4,300,000 of pension withdrawal liability and $1,600,000 of liability related to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Dateleasehold guaranty); and
(mn) the 2021 Preferred Stock on terms reasonably acceptable Indebtedness of any Loan Party or any Subsidiary thereof not otherwise permitted pursuant to the Administrative Agent this Section 7.03 in its sole discretionan aggregate principal amount not to exceed $500,000 at any time outstanding. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative AgentRequired Lenders. Notwithstanding anything in this Section 7.03 to the contrary, no Loan Party will create or incur (or permit any of its Subsidiaries to create or incur) any Indebtedness (other than the Obligations) which is subordinated or junior in right of payment or priority to the ABL Indebtedness but is senior in right of payment or priority to the Obligations.
Appears in 1 contract
Sources: Senior Secured Credit Agreement (Williams Industrial Services Group Inc.)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):
(a) Obligations of the Loan Parties Borrower and its Subsidiaries under the Loan Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement Agreement, and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, provided that the Indebtedness under the ABN AMRO Facility may be increased to an aggregate principal amount not to exceed €20,000,000 at any time outstanding or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to (i) Capital Leases existing on the Closing Date as specified on Schedule 7.03(c) and (ii) additional Capital Leases incurred after the Closing Date and purchase money Indebtedness in an aggregate amount not to exceed $1,000,000 250,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(fe) Indebtedness incurred by the Borrower or any Loan Party of its Subsidiaries in respect of letters of credit, bank guarantees, bankers’ acceptances, performance bonds, surety bonds, in each case incurred in the ordinary course of business, and reimbursement obligations in respect of any of the foregoing, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance self‑insurance or other Indebtedness with respect to reimbursement-type reimbursement‑type obligations regarding workers compensation claims;
(gf) Indebtedness incurred by the Borrower or any Loan Party of its Subsidiaries in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(hg) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by the Borrower or any Loan Party of its Subsidiaries in the ordinary course of business;
(h) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Borrower or any of its Subsidiaries;
(i) (i) Indebtedness of (i) any Loan Party owing to any other Loan Party Party, (ii) those certain intercompany notes evidencing Indebtedness of the Borrower to Global Power Netherlands B.V. existing on the Closing Date as specified on Schedule 7.03(i) and (iiiii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and Documents, (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to Administrative Agent, and (C) any payment by any Guarantor Subsidiary under any guaranty of the Collateral AgentObligations shall result in a pro rata reduction of the amount of any Indebtedness owed by such Subsidiary to the Borrower or to any of its Subsidiaries for whose benefit such payment is made;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties[reserved];
(k) Guarantee Obligations with respect to Indebtedness in respect permitted pursuant to clauses (a), (b), (c), (d), (e), (f) and (j) of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligationsthis Section 7.03;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Existing Letters of Credit and any replacement letters of credit issued by a replacement issuing bank after the Closing Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.;
Appears in 1 contract
Sources: Senior Secured Credit Agreement (Global Power Equipment Group Inc.)
Indebtedness. CreateIndebtedness. Incur, incurcreate, assume or suffer permit to exist any Indebtedness, except the following, (without duplication (which constitutes “Permitted Indebtedness”duplication):
(a) Obligations of Indebtedness existing on the Loan Parties under the Loan Documents;
(bdate hereof and set forth in Schedule 5.01(a) Surviving Indebtedness listed on Schedule 7.03(b), but not and any extensions, renewals or replacements of such Indebtedness except existing mortgages and Capital Lease Obligations; provided, however, that (i) renewals and extensions expressly provided for in the agreements evidencing principal amount of any such Indebtedness as extension, renewal or replacement shall not exceed the same are in effect on principal amount of the date of this Agreement and mortgage or Capital Lease Obligation so extended, renewed or replaced, (ii) refinancings the mortgage or Capital Lease Obligation so extended, renewed or replaced shall not be secured by any property or asset that was not already pledged to secure the existing mortgage or Capital Lease Obligation, and extensions of any (iii) such Indebtedness if extension, renewal or replacement is not on terms materially more restrictive to the terms and conditions thereof are not Borrower or its Subsidiaries or materially less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced mortgage or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being Capital Lease Obligation so extended, renewed or refinancedreplaced;
(b) Indebtedness represented by the Loan Documents; provided, however, that Indebtedness consisting of commercial paper of the Borrower may also be incurred pursuant to this clause (Bb) exceed in a to the extent the sum of such Indebtedness and the aggregate principal amount of Loans then outstanding do not exceed the Indebtedness being renewed, extended or refinanced, or Advances at such time (Csubject to Section 5.01(n) be incurred, created or assumed if any Default or Event to the extent in excess of Default has occurred and is continuing or would result therefrom;$100,000,000).
(c) Indebtedness incurred upon the acquisition of any property or asset secured by Liens on such property or asset in accordance with respect to Capital Leases and 5.02(b); provided, however, that the amount of such Indebtedness shall not exceed the purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that price of any such Indebtedness (x) in the case of additional Capital Leases property or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP LoanIndebtedness secured by Liens permitted under 5.02(i), 5.02(j) or 5.02(m);
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks Subsidiaries existing at the time they are acquired by the Borrower and not incurred in the ordinary course contemplation of business and not for speculative purposessuch acquisition;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsof Subsidiaries not prohibited by Section 5.09;
(g) Indebtedness incurred by of (i) the Borrower to any Loan Party wholly owned Subsidiary, Choice Hotels Franchising or Quality Hotels; (ii) any wholly owned Subsidiary, Choice Hotels Franchising or Quality Hotels to the Borrower; and (iii) any Subsidiary, Choice Hotels Franchising or Quality Hotels to any wholly owned Subsidiary (or to Choice Hotels Franchising or Quality Hotels)(for the purposes of this clause (g), "wholly owned Subsidiary" includes any wholly owned subsidiary of Choice Hotels Franchising and/or Quality Hotels, any Subsidiary that would otherwise constitute a wholly owned Subsidiary but for directors' qualifying shares or similar matters, and any Subsidiary the only direct shareholders, members or participants in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified timewhich are wholly owned Subsidiaries, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPChoice Hotels Franchising or Quality Hotels);
(h) Indebtedness consisting represented by notes or letters of guarantees resulting from endorsement credit issued for the account of negotiable instruments the Borrower or any Subsidiary in connection with insurance policies and in a form substantially similar to the notes or letters of credit issued for collection by the account of the Borrower or any Loan Party Subsidiary set forth in Schedule 5.01(h) issued in connection with existing insurance policies of the ordinary course of businessBorrower or such Subsidiary;
(i) Indebtedness represented by utility bonds, performance bonds, state self insurance bonds and miscellaneous other bonds other than those existing on the date hereof and listed in Schedule 5.01(a) (including any extensions, renewals and replacements), the aggregate principal amount of such Indebtedness at any one time not to exceed $20,000,000 (isubject to Section 5.01(n) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right excess of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent$20,000,000);
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan PartiesBorrower consisting of Guarantees in connection with pension and deferred compensation arrangements arising in connection with the Distribution; provided, however, that the aggregate amount of such Indebtedness shall not exceed $40,000,000;
(k) Indebtedness in respect consisting of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the ObligationsManor Care Note;
(l) Non-Recourse Hotel Indebtedness; provided, that, so long as the Manor Care Note remains in effect or any principal, interest or any other unsecured Indebtednessexpenses or amounts payable thereunder shall be unpaid, provided that the proceeds of the incurrence of such Non-Recourse Hotel Indebtedness matures not less than one hundred eighty shall be applied solely to prepay amounts outstanding under the Manor Care Note;
(180m) days following the Last Out Maturity DateIndebtedness consisting of Sale and Lease-back Transactions permitted under Section 5.03; and
(mn) other unsecured Indebtedness of the 2021 Preferred Stock on terms reasonably acceptable Borrower in an aggregate principal amount at any one time outstanding not to exceed $100,000,000; provided, however, that the Administrative Agent covenants and events of default contained in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder with an aggregate principal amount in excess of $10,000,000 shall not be more restrictive of the Borrower and expressly subordinated to its Subsidiaries than those in this Agreement; and provided further, that the Loans and other Obligations in a manner and on terms satisfactory to aggregate amount of Guarantees by the Administrative AgentBorrower may not exceed $50,000,000.
Appears in 1 contract
Indebtedness. CreateNo Credit Party will contract, create, incur, assume or suffer permit to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of Indebtedness arising under this Credit Agreement and the Loan Parties under the Loan other Credit Documents;
(b) Surviving Indebtedness listed existing as of the Closing Date as referenced in Section 6.10 (and renewals, refinancings, replacements or extensions thereof on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable no more favorable, in the aggregate, to the obligor thereon or to the Lenders applicable creditor than the such existing Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount not in excess of that outstanding as of the Indebtedness being reneweddate of such renewal, extended refinancing, replacement or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromextension);
(c) Indebtedness with in respect to Capital Leases of current accounts payable and purchase money Indebtedness in an amount not to exceed $1,000,000 accrued expenses incurred in the aggregate at any time outstanding; provided ordinary course of business and to the extent not current, accounts payable and accrued expenses that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset are subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such assetbona fide dispute;
(d) the SBA PPP LoanIndebtedness owing by a Credit Party to another Credit Party;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred arising from Hedging Agreements entered into in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect arising from judgments that do not cause an Event of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsDefault;
(g) secured Indebtedness incurred by any Loan Party in connection with Non-Recourse Land Financing existing on the Closing Date and Non-Recourse Land Financing with respect of accounts payable to trade creditors for goods and services and current operating liabilities (not real property acquired after the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;Closing Date.
(h) other secured Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party up to $200,000,000, in the ordinary course aggregate, at any one time outstanding; provided that for each dollar of business;secured Indebtedness incurred in excess of $100,000,000, as permitted under this Section 8.1(h), availability under the Revolving Committed Amount shall be reduced by one dollar; and
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance so long as, after giving effect thereto, the Borrower is in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this the financial covenants set forth in Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent7.2.
Appears in 1 contract
Sources: Credit Agreement (Abacoa Homes Inc)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations in the case of the Borrower:
(i) Indebtedness in respect of Swap Contracts designed to hedge against fluctuations in interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and consistent with prudent business practice and not for speculative purposes;
(ii) Indebtedness evidenced by the Senior Subordinated Notes and any Permitted Refinancing thereof; and
(iii) Permitted Subordinated Indebtedness (A) in an aggregate amount not to exceed $25,000,000 at any time outstanding, and (B) in an aggregate amount in excess of $25,000,000 solely to the extent that such excess amounts are applied to prepay the Loans pursuant to Section 2.05(b)(iv);
(b) in the case of the Borrower and its Subsidiaries:
(i) Indebtedness of the Loan Parties under the Loan Documents;
(bii) Surviving Indebtedness outstanding or committed to be incurred on the date hereof and listed on Schedule 7.03(b)7.03 and any modifications, but not any extensionsrefinancings, refundings, renewals or replacements extensions thereof; provided, that (A) the amount of such Indebtedness is not increased at the time of such modification, refinancing, refunding, renewal or extension except (i) renewals by an amount equal to a reasonable premium or other reasonable amount paid, and extensions expressly provided for fees and expenses reasonably incurred, in the agreements evidencing connection with such refinancing and by an amount equal to any such Indebtedness existing commitments unutilized thereunder or as the same are in effect on the date of otherwise permitted pursuant to this Agreement Section 7.03, and (iiB) refinancings and extensions of any such Indebtedness if the terms and conditions thereof (including, if applicable, as to collateral and subordination) of any such modified, extending, refunding or refinancing Indebtedness are not materially less favorable to the obligor thereon Loan Parties or to the Lenders than the Indebtedness being refinanced or extended, terms and the average life to maturity thereof is greater than or equal to that conditions of the Indebtedness being refinanced modified, extended, refunded or extended; provided, refinanced;
(iii) Guarantees of the Borrower and its Subsidiaries in respect of Indebtedness of the Borrower or such Subsidiary otherwise permitted hereunder;
(iv) Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not of (A) include Indebtedness of an obligor that was not an obligor with respect any Loan Party owing to the Indebtedness being extended, renewed or refinancedany other Loan Party, (B) exceed of any Subsidiary of the Borrower that is not a Loan Party owed to (1) any other Subsidiary of Holdings that is not a Loan Party or (2) Holdings or a Loan Party in a principal amount the Indebtedness being renewedrespect of an Investment permitted under Section 7.02(c) or Section 7.02(o), extended or refinanced, or and (C) of any Loan Party to any Subsidiary of Holdings which is not a Loan Party; provided, that all such Indebtedness of any Loan Party in this clause (iv)(C) must be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromexpressly subordinated to the Obligations;
(cv) Attributable Indebtedness with respect to Capital Leases and purchase money obligations (including obligations in respect of mortgage, industrial revenue bond, industrial development bond and similar financings) to finance the purchase, repair or improvement of fixed or capital assets within the limitations set forth in Section 7.01(i); provided, however, that the aggregate amount of all such Indebtedness at any one time outstanding shall not exceed $20,000,000;
(vi) Indebtedness of Foreign Subsidiaries in an aggregate principal amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any outstanding for all such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute Persons taken together not less than 75% of the aggregate consideration paid with respect to such assetexceeding $20,000,000;
(d) the SBA PPP Loan;
(evii) Indebtedness in respect of Swap Contracts designed to hedge against fluctuations in interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(fviii) Indebtedness (other than for borrowed money) subject to Liens permitted under Section 7.01;
(ix) Indebtedness of the Borrower and its Subsidiaries (A) assumed in connection with any Permitted Acquisition or (B) owed to the seller of any property acquired in a Permitted Acquisition on an unsecured subordinated basis, in each case, so long as both immediately prior and after giving effect thereto, (x) no Event of Default shall exist or result therefrom, and (y) Holdings and its Subsidiaries will be in Pro Forma Compliance with the covenants set forth in Section 7.11, after giving effect to such Permitted Acquisition and the incurrence or issuance of such Indebtedness and any Permitted Refinancing thereof;
(x) Indebtedness representing deferred compensation to employees of the Borrower and its Subsidiaries;
(xi) Indebtedness consisting of promissory notes issued by any Loan Party to current or former officers, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of Holdings or Investors LLC permitted by Section 7.06;
(xii) Indebtedness incurred by any Loan Party the Borrower or its Subsidiaries in respect a Permitted Acquisition or Disposition under agreements providing for the adjustment of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts the purchase price or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsadjustments;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(hxiii) Indebtedness consisting of guarantees resulting obligations of the Borrower or its Subsidiaries under deferred compensation or other similar arrangements incurred by such Person in connection with Permitted Acquisitions in an aggregate amount not to exceed $5,000,000;
(xiv) Indebtedness in respect of netting services, overdraft protections and similar arrangements in each case in connection with deposit accounts;
(xv) Indebtedness in an aggregate principal amount not to exceed $20,000,000 at any time outstanding; and
(xvi) the Wakefield Bond Guaranty.
(c) in the case of Holdings:
(i) Indebtedness under the Loan Documents;
(ii) Indebtedness evidenced by the Holdco Notes and any Permitted Refinancing thereof;
(iii) unsecured Indebtedness of Holdings that (“Permitted Holdco Debt”) (A) is not subject to any Guarantee by the Borrower or any of its Subsidiaries, (B) will not mature prior to the date that is ninety-one (91) days after the Maturity Date of the Term B Facility, (C) has no scheduled amortization or payments of principal, (D) does not permit any payments in cash of interest or other amounts in respect of the principal thereof for at least five (5) years from endorsement the date of negotiable instruments the issuance or incurrence thereof, and (E) has mandatory prepayment, repurchase or redemption, covenant, default and remedy provisions customary for collection by senior discount notes of an issuer that is the parent of a borrower under senior secured credit facilities, and in any Loan Party event, with respect to covenant, default and remedy provisions, no more restrictive than those contained in the Senior Subordinated Notes Indenture, taken as a whole (other than provisions customary for senior discount notes of a holding company); provided, any such Indebtedness shall constitute Permitted Holdco Debt only if (1) both before and after giving effect to the issuance or incurrence thereof, no Default or Event of Default shall have occurred and be continuing, (2) after giving Pro Forma Effect to the issuance or incurrence thereof, the Holdings Consolidated Leverage Ratio shall be less than 6.00:1.00, and (3) if the amount of such Indebtedness issued or incurred in any fiscal quarter exceeds $5,000,000, the Chief Financial Officer of Holdings or the Borrower shall have delivered an officer’s certificate demonstrating Pro Forma Compliance with the covenants set forth in Section 7.11 in form and substance reasonably satisfactory to the Administrative Agent, it being understood that any capitalized or paid-in-kind interest or accreted principal on such Indebtedness shall not constitute an issuance or incurrence of Indebtedness for purposes of this proviso;
(iv) unsecured Guarantees of obligations of its Subsidiaries in the ordinary course of business;
(iv) Indebtedness of permitted pursuant to clause (ib)(iv) any Loan Party owing to any other Loan Party and above;
(iivi) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness seller of any property acquired in a Permitted Acquisition on an unsecured subordinated basis so long as, if applicable, Holdings complies with the proviso in Section 7.06(e)(v) (whether or not any Restricted Payment is permitted as an Investment pursuant made to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity DateHoldings); and
(mvii) Indebtedness of the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent type described in its sole discretion. For purposes of determining compliance with this Section 7.03Sections 7.03(b)(viii), all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (axi) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent(xii).
Appears in 1 contract
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):Indebtedness except:
(a) Obligations of the Loan Parties under the Loan DocumentsCredit Agreement Obligations;
(b) Surviving Indebtedness listed on Schedule 7.03(b)and obligations owing under Hedge Agreements entered into in order to manage existing or anticipated interest rate, but not any extensions, renewals exchange rate or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing commodity price risks incurred in the ordinary course of business and not for speculative purposes;
(fc) Indebtedness incurred existing on the Closing Date and listed on Schedule 9.1, and any refinancings, refundings, renewals or extensions thereof; provided that (i) the principal amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability an amount equal to a reasonable premium or other employee benefits reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder, and (ii) the final maturity date and weighted average life of such refinancing, refunding, renewal or propertyextension shall not be prior to or shorter than that applicable to the Indebtedness prior to such refinancing, casualty refunding, renewal or extension;
(d) Capital Lease Obligations and purchase money Indebtedness in an aggregate amount not to exceed $5,000,000 at any time outstanding;
(e) Indebtedness of a Person existing at the time such Person became a Subsidiary or assets were acquired from such Person in connection with an Investment permitted pursuant to Section 9.3, to the extent that (i) such Indebtedness was not incurred in connection with, or in contemplation of, such Person becoming a Subsidiary or the acquisition of such assets, (ii) neither KMG nor any Subsidiary thereof (other than such Person and its Subsidiaries or any other Person that such Person merges with or that acquires the assets of such Person) shall have any liability insurance or self-insurance or other Indebtedness obligation with respect to reimbursement-type obligations regarding workers compensation claimssuch Indebtedness and (iii) the aggregate outstanding principal amount of such Indebtedness does not exceed $10,000,000 at any time outstanding;
(f) Guarantees with respect to Indebtedness permitted pursuant to subsections (a) through (e) of this Section;
(g) unsecured intercompany Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPextent permitted pursuant to Section 9.3;
(h) Indebtedness consisting arising from the honoring by a bank or other financial institution of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party a check, draft or other similar instrument drawn against insufficient funds in the ordinary course Ordinary Course of businessBusiness;
(i) Indebtedness of (i) any Loan Party owing under performance bonds, surety bonds, release, appeal and similar bonds, statutory obligations or with respect to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, thatworkers’ compensation claims, in each case (A) all such Indebtedness shall be evidenced by promissory notes incurred in the Ordinary Course of Business, and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated reimbursement obligations in right respect of payment to the payment in full any of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agentforegoing;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to of any bona fide warranty Borrower Party or contractual service obligations or performance any Subsidiary thereof incurred in the ordinary course Ordinary Course of business Business to finance the payment of premiums for a twelve-month period for insurance, provided that the Loan Parties;aggregate outstanding principal amount of such Indebtedness shall not at any time exceed $3,000,000; and
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Borrower Party or any Affiliate or employee of Subsidiary thereof not otherwise permitted pursuant to this Section in an aggregate principal amount not to exceed $15,000,000 at any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agenttime outstanding.
Appears in 1 contract
Sources: Credit Agreement (KMG Chemicals Inc)
Indebtedness. CreateNone of the Borrowers will, nor will any Borrower permit any Subsidiary to, create, incur, assume or suffer to exist become or remain liable in respect of any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of Indebtedness to the Loan Parties under the Loan DocumentsLenders hereunder;
(b) Surviving Indebtedness listed on Schedule 7.03(b)of any wholly-owned Subsidiary to a Borrower or any other wholly-owned Subsidiary and of a Borrower to any wholly- owned Subsidiary; provided, but not any extensionshowever, renewals or replacements of such Indebtedness except that (i) renewals and extensions all moneys due from a Borrower to any Subsidiary which is not a Borrower will be expressly provided for in the agreements evidencing any such Indebtedness constituted as the same are in effect on the date of this Agreement Subordinated Debt and (ii) refinancings and extensions of no Borrower shall repay any such Indebtedness if the terms and conditions thereof are not less favorable moneys due to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Subsidiary at any time unless no Event of Default has occurred exists and is continuing no event which, with the giving of notice or lapse of time or both, would result therefromconstitute an Event of Default exists or will exist after such repayment;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at Current liabilities of a Borrower or any time outstanding; provided that any such Indebtedness Subsidiary (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less other than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of borrowed money) incurred in the ordinary course of its business and in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPtrade practices;
(hd) Existing Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by a Borrower or any Loan Party Subsidiary referred to in the ordinary course of business;
Schedule 5.8 attached hereto, and renewals and extensions thereof, provided that (i) the aggregate principal amount of such Indebtedness of (i) is not at any Loan Party owing to any other Loan Party and time increased, (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary no material terms applicable to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant more favorable to the Collateral Documents renewal or extension lenders than the terms that are applicable to the holders of such Indebtedness on the date hereof and (Biii) all the interest rate applicable to such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full a market interest rate as of the Obligations pursuant to the terms time of the applicable promissory notes such renewal or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agentextension;
(je) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to of a Borrower or any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan PartiesSubsidiary secured by Permitted Liens;
(kf) Indebtedness of a Borrower or any Subsidiary in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment guarantees to the payment in full (other than any payment as a result of extent the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such underlying Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Dateis permitted by this 7.1; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Dynamics Research Corp)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations obligations (contingent or otherwise) existing or arising under any Swap Contract, provided that such obligations are (or were) entered into by such Person in the ordinary course of business for the Loan Parties purpose of directly mitigating risks associated with fluctuations in interest rates;
(b) Indebtedness under the Loan Documents;
(bc) Surviving Indebtedness listed on Schedule 7.03(b), but not 7.02 and any extensions, renewals or replacements Refinancings thereof; provided that the amount of such Indebtedness is not increased at the time of such Refinancing except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such Refinancing and by an amount equal to any existing commitments unutilized thereunder and the direct or any contingent obligor with respect thereto is not changed, as a result of or in connection with such Refinancing; and provided, still further, that the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such Refinanced Indebtedness, and of any agreement entered into and of any instrument issued in connection therewith, are no less favorable in any material respect to the Borrower or the Lenders than the terms of any agreement or instrument governing the Indebtedness being Refinanced and the interest rate applicable to any such Refinanced Indebtedness does not exceed the then applicable market interest rate;
(d) Indebtedness under any Junior Subordinated Indenture, so long as (i) renewals and extensions expressly provided for the interest rate on such Indebtedness does not exceed 10%, (ii) there are no financial covenants contained in the agreements evidencing any documents related to such Indebtedness and (iii) such Indebtedness is Subordinated Debt
(e) other Subordinated Debt which qualifies as tier 2 capital as determined in accordance with the same then-current regulations of the applicable Bank Regulatory Authorities;
(f) Guarantees by the Borrower
(i) (A) of Indebtedness of any Subsidiary and (B) of ordinary course obligations of any Subsidiary so long as (x) all Guarantees under this subclause (i) are unsecured and (y) the aggregate principal amount thereof shall not exceed $30,000,000; and
(ii) of any Indebtedness or other obligations of Barrington Bank & Trust Company, N.A., pursuant to that certain Corporate Guaranty Agreement, a copy of which was previously delivered to the Lenders, executed by the Borrower in effect on favor of the date Government National Mortgage Association dated October 29, 2015, so long as any Guarantee under this subclause (ii) is unsecured;
(g) the Existing Mortgage Loan (which may be Refinanced with the issuance of this Agreement other Indebtedness so long as (i) such Indebtedness does not increase the principal amount of the Indebtedness so Refinanced and (ii) refinancings and extensions of any Liens securing such Indebtedness if the terms and conditions thereof are not less favorable extended to the obligor thereon or to the Lenders than any additional property prohibited from securing the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromso Refinanced);
(ch) Indebtedness with respect to Capital Leases and purchase money other unsecured Indebtedness in an aggregate principal amount not to exceed $1,000,000 in the aggregate 300,000,000 at any time outstanding; , provided that any Indebtedness in excess of such Indebtedness (x) in the case limit which is comprised of additional Capital Leases or purchase money Indebtedness, Senior Debt shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection permitted with the incurrence written consent of such Indebtednessall Lenders in their discretion, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;and
(i) Indebtedness in the form of letters of credit (and reimbursement obligations in respect thereof) issued for the account of, or confirmed on behalf of, (i) any Loan Party owing to any other Loan Party and Borrower or (ii) Indebtedness owed by a Subsidiary that is Borrower and any of its Subsidiaries as co-borrowers or co-applicant parties, the aggregate amount thereof, drawn or undrawn, not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentexceed $45,000,000.
Appears in 1 contract
Indebtedness. CreateThe Loan Parties will not create, incur, assume or suffer permit to exist any Indebtedness, except (the following, without duplication (which constitutes “following being called "Permitted Indebtedness”"):
(ai) Obligations of the Loan Parties Indebtedness created hereunder and under the other Loan Documents;
(bii) Surviving any other Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect existing on the date Effective Date which is set forth in Schedule 6.01(n)(i) and has been designated on such schedule as Indebtedness that will remain outstanding following the funding of this Agreement the Loans, and (ii) refinancings and extensions any extension, renewal, refunding or replacement of any such Indebtedness if the Indebtedness, provided that (A) such extension, renewal, refunding or replacement is pursuant to terms and conditions thereof that are not less favorable to the obligor thereon or to Loan Parties and the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that terms of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed renewed, refunded or refinanced, replaced and (B) exceed in a principal after giving effect to such extension, renewal, refunding or replacement, the amount of such Indebtedness is not greater than the amount of Indebtedness being renewedoutstanding immediately prior to such extension, extended renewal, refunding or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromreplacement;
(ciii) Indebtedness with respect to Capital Leases intercompany loans among the Parent and purchase money Indebtedness in an amount its Subsidiaries (or among any Subsidiaries), provided that (A) intercompany loans permitted by this clause (iii) shall not to exceed (1) $1,000,000 800,000 in the aggregate at any time outstanding; provided that outstanding with respect to any such Indebtedness loans to Spandex Limited, (2) $400,000 in the aggregate at any time outstanding with respect to any loans to Ultramark Adhesive Products Ltd., (3) $300,000 in the aggregate with respect to any loans made by any Loan Party to any Foreign Subsidiary (other than a Loan Party), and (4) notwithstanding clauses (1), (2), and (3) of this clause (iii) (but nevertheless also subject to the individual limits set forth therein), (x) in the case aggregate amount of additional Capital Leases or purchase money Indebtedness, intercompany loans at any time outstanding permitted by this clause (iii) shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may benot exceed $1,500,000, and (y) any intercompany loan permitted by this clause (iii) will cease to be permitted if it is not repaid in the case of purchase money Indebtednessfull within 30 days after it is made, shall constitute not less than 75% of the aggregate consideration paid (B) with respect to any of such asset;
intercompany loans that are evidenced by one or more promissory notes, such promissory notes are pledged to the Agent pursuant to the terms hereunder, and (dC) there are no restrictions whatsoever on the SBA PPP Loan;
(e) Indebtedness in respect ability of Swap Contracts designed the applicable obligor to hedge against interest ratesrepay such loan, foreign exchange rates or commodities pricing risks incurred and further provided that book entry extensions of credit for product purchases in the ordinary course of business will not be deemed to be Indebtedness so long as (x) the amount of such extensions of credit that are made after the Effective Date does not exceed the Permitted Book Entry Amount in the aggregate at any time with respect to amounts owed by Persons that are organized outside of the United States to Persons that are organized in the United States, (y) none of such extensions of credit for product purchases may be outstanding for more than 90 days, except that up to $500,000 of such extensions of credit for product purchases that are made after the Effective Date may be outstanding at any time for more than 90 days, but less than 150 days, and (z) all such extensions of credit which are outstanding in whole or in part as of the Effective Date shall be listed on Schedule 7.02(a)(iii) (and amounts in excess of the thresholds, or outstanding for more than the number of days, set forth in clause (x) or (y) of this proviso or which were made prior to the Effective Date and not for speculative purposeslisted on Schedule 7.02(a)(iii) shall be deemed to be intercompany loans);
(fiv) other Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in after the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
Effective Date (g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially determined on a consolidated basis without duplication in accordance with GAAP) consisting of Capitalized Lease Obligations and/or secured by Liens permitted under Section 7.02(b)(viii), in an aggregate principal amount at any time outstanding not in excess of $2,000,000;
(hv) Revolving Credit Indebtedness consisting in an aggregate principal amount not to exceed at any time outstanding, the lower of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes $49,500,000 (plus interest and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents fees payable thereunder), and (B) all such Indebtedness shall be unsecured and subordinated in right of payment the aggregate amount available to the payment Loan Parties under the Borrowing Base (as defined in full the Revolving Credit Agreement as in effect on the date hereof) plus ten percent (10%) of such amount available under this clause (B), provided that the Revolving Credit Agent and the Borrowers shall have executed and delivered to the Agent the Intercreditor Agreement; and the extension of maturity, replacement, refinancing or modification of the Obligations terms thereof, provided that such extension, replacement, refinancing or modification (x) is pursuant to terms that are not less favorable (as determined in the Agent's discretion) to the Loan Parties and the Lenders than the terms of the applicable promissory notes Revolving Credit Indebtedness being so extended, replaced, refinanced or an intercompany subordination agreement that in any such casemodified, (y) is reasonably satisfactory subject to the Collateral AgentIntercreditor Agreement or a similar intercreditor agreement having substantially the same terms and conditions as the Intercreditor Agreement and (z) shall not provide for the incurrence of Indebtedness thereunder in excess of $49,500,000 at any time outstanding;
(jvi) unsecured Contingent Indebtedness of up to (other than for borrowed moneyA) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in $85,000,000 under the ordinary course of business of GECC Vendor Program Arrangement and (B) $12,500,000 under the Loan PartiesCanadian Vendor Program Arrangement;
(kvii) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the ObligationsGuarantees permitted under Section 7.01(c);
(lviii) other unsecured Indebtedness owing under that certain Loan Agreement dated as of December 1, 1984 between the Connecticut Development Authority and the Parent, that certain Reimbursement Agreement dated as of December 1, 1984 between the Parent and Citibank, N.A., and any extension, renewal, refunding or replacement of such Indebtedness, provided that (A) such extension, renewal, refunding or replacement is pursuant to terms that are not less favorable to the Loan Parties and the Lenders than the terms of the Indebtedness being extended, renewed, refunded or replaced and (B) after giving effect to such extension, renewal, refunding or replacement, the amount of such Indebtedness matures is not less greater than one hundred eighty (180) days following the Last Out Maturity Dateamount of such Indebtedness outstanding immediately prior to such extension, renewal, refunding or replacement; and
(mix) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent Unsecured Indebtedness in its sole discretion. For purposes an aggregate principal amount not in excess of determining compliance $5,000,000 at any one time outstanding (plus interest and fees payable with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentrespect thereto).
Appears in 1 contract
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of Indebtedness existing on the Loan Parties under the Loan Documents;
(b) Surviving Indebtedness listed on date hereof and set forth in Schedule 7.03(b), but not 6.01 and any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in to the agreements evidencing any extent the principal amount of such Indebtedness as is not increased, neither the same are in effect on final maturity nor the date weighted average life to maturity of this Agreement and (ii) refinancings and extensions of any such Indebtedness is decreased, such Indebtedness, if subordinated to the Obligations, remains so subordinated on terms and conditions thereof are not no less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extendedLenders, and the average life to maturity thereof is greater than or equal to that original obligors in respect of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted remain the only obligors thereon;
(b) Indebtedness created hereunder and under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromother Loan Documents;
(c) intercompany Indebtedness with respect to Capital Leases of Overnite and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset Subsidiaries and ordinary course intercompany liabilities incurred in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such assetcash management operations;
(d) Indebtedness of Overnite or any Subsidiary incurred to finance the SBA PPP Loanacquisition, construction or improvement of any fixed or capital assets, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; provided that (i) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement and (ii) the aggregate principal amount of Indebtedness permitted by this Section 6.01(d) shall not exceed $50,000,000 at any time outstanding;
(e) Indebtedness Capital Lease Obligations and Synthetic Lease Obligations in respect an aggregate principal amount not in excess of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes$50,000,000 at any time outstanding;
(f) Indebtedness incurred by any Loan Party in under performance, bid, surety, statutory or appeal bonds or with respect of letters of credit, bank guarantees, bankersto workers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness in each case incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(g) Indebtedness of any Subsidiary that exists at the time such person becomes a Subsidiary and that was not incurred in contemplation of or in connection with the acquisition by Overnite or a Subsidiary of such person, in an aggregate principal amount not in excess of $50,000,000 at any time outstanding;
(h) Securitization Debt in an aggregate amount not greater than $150,000,000 outstanding at any time;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary an employee saving plan from time to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agenttime;
(j) unsecured in addition to Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause permitted by paragraphs (a) of this Section 7.03. Notwithstanding anything through (i) above (in each case without regard to the contrary hereinlimitations set forth therein), no Loan Party shall have outstanding, create or incur any other Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder incurred at any time so long as at the time thereof and expressly subordinated immediately after giving effect to the Loans incurrence thereof (i) no Event of Default or Default shall have occurred and other Obligations be continuing, and (ii) Overnite would be in a manner and on terms satisfactory to the Administrative AgentPro Forma Compliance.
Appears in 1 contract
Sources: Credit Agreement (Overnite Corp)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of the Loan Parties Indebtedness under the Loan Documents;
(b) Surviving Indebtedness outstanding on the date hereof and listed on Schedule 7.03(b)7.02 and any refinancings, but not any extensionsrefundings, renewals or replacements extensions thereof; provided that the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable by an amount equal to the obligor thereon a reasonable premium or to the Lenders than the Indebtedness being refinanced or extendedother reasonable amount paid, and the average life to maturity thereof is greater than or fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to that of any existing commitments unutilized thereunder and the Indebtedness being refinanced direct or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an any contingent obligor with respect to the Indebtedness being extendedthereto is not changed, renewed as a result of or refinancedin connection with such refinancing, (B) exceed in a principal amount the Indebtedness being renewedrefunding, extended renewal or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromextension;
(c) Indebtedness with in respect to Capital Leases of Capitalized Leases, Synthetic Lease Obligations and purchase money obligations for fixed or capital assets within the limitations set forth in Section 7.01(i); provided, however, that the aggregate amount of all such Indebtedness at any one time outstanding shall not exceed $5,000,000 (which amount excludes any Indebtedness outstanding on the date hereof and listed on Schedule 7.02);
(d) Unsecured Indebtedness of a Subsidiary of the Company owed to the Company or a wholly-owned Subsidiary of the Company, which Indebtedness shall be permitted under the provisions of Section 7.03 (“Intercompany Debt”);
(e) Guarantees of the Loan Parties in respect of Indebtedness otherwise permitted hereunder of the Loan Parties;
(f) Indebtedness of any Person that becomes a Subsidiary of the Company after the date hereof in a transaction permitted hereunder in an aggregate principal amount not to exceed $1,000,000 5,000,000; provided that such Indebtedness is existing at the time such Person becomes a Subsidiary of the Company and was not incurred solely in contemplation of such Person’s becoming a Subsidiary of the Company); and
(g) other unsecured Indebtedness not contemplated by the above provisions in an aggregate principal amount not to exceed $2,000,000 at any time outstanding; provided that any such Indebtedness (x) the Loan Parties are in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection Pro Forma Compliance with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% each of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness financial covenants set forth in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent7.11.
Appears in 1 contract
Indebtedness. CreateEach of the Loan Parties shall not, and shall not permit any of its Unregulated Subsidiaries to, at any time create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(ai) Obligations of the Loan Parties Indebtedness under the Loan Documents;
(bii) Surviving Existing Indebtedness listed as set forth on Schedule 7.03(b)8.2.1 including any amendments, but not any extensions, renewals or replacements refinancings thereof, so long as at the time of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, Borrower is in compliance with Section 8.2.12 [Maximum Leverage Ratio] and (y) in the case no Event of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such assetDefault would be caused thereby;
(diii) the SBA PPP LoanIndebtedness of a Loan Party to another Loan Party;
(eiv) Indebtedness in respect of Swap Contracts designed capitalized leases (including, without limitation, capitalized leases for metered assets) not to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred exceed at any time outstanding in the ordinary course of business aggregate for the Loan Parties and not for speculative purposestheir Unregulated Subsidiaries $100,000,000;
(fv) Indebtedness incurred by any of a Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsarising under any Hedging Transaction;
(gvi) Indebtedness incurred Indebtedness, at any time outstanding not to exceed $35,000,000, secured by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith Liens permitted by appropriate proceedings and reserved for substantially in accordance with GAAPSection 8.2.2(i);
(hvii) Indebtedness consisting Indebtedness, secured by Purchase Money Security Interests as permitted by clause (xi) of guarantees resulting from endorsement the definition of negotiable instruments for collection by Permitted Liens, not to exceed at any Loan Party time outstanding in the ordinary course of businessaggregate for the Loan Parties and their Unregulated Subsidiaries $20,000,000;
(iviii) Indebtedness not to exceed at any time outstanding in the aggregate for the Loan Parties and their Unregulated Subsidiaries $75,000,000, so long as such Indebtedness: (a) is Indebtedness of (i) any Loan Party owing an Acquired Person which existed prior to any other the consummation of the Permitted Acquisition in connection with which such Acquired Person was acquired by a Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness was not incurred in contemplation of or in connection with such Permitted Acquisition; and (b) if secured, is secured by Liens permitted by clause (xii) of the definition of Permitted Liens;
(ix) The NJR Notes, including any amendments, extensions, renewals or refinancings thereof, so long as an Investment pursuant to at the time of the incurrence of such Indebtedness, the Borrower is in compliance with Section 7.02; provided, that8.2.12 [Maximum Leverage Ratio] and no Event of Default would be caused thereby;
(x) Additional NJR Notes, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to including any amendments, extensions, renewals or refinancings thereof, so long as at the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full time of the Obligations pursuant to incurrence of such Indebtedness, the terms Borrower is in compliance with Section 8.2.12 [Maximum Leverage Ratio] and no Event of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral AgentDefault would be caused thereby;
(jxi) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan PartiesProject Subsidiaries;
(kxii) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the ObligationsGuaranties permitted by Section 8.2.3 [Guaranties];
(lxiii) other unsecured Indebtedness under the NJR Revolving Credit Agreement, including any amendments, extensions, renewals or refinancings thereof, so long as at the time of the incurrence of such Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity DateBorrower is in compliance with Section 8.2.12 [Maximum Leverage Ratio] and no Event of Default would be caused thereby; and
(mxiv) Additional Indebtedness of the 2021 Preferred Stock on terms reasonably acceptable to Loan Parties (including, but not limited to, any Guaranty of Indebtedness of Project Subsidiaries) incurred after the Administrative Agent Closing Date, in its sole discretion. For purposes each case including any amendments, extensions, renewals or refinancings thereof, so long as at the time of determining the incurrence of such Indebtedness, the Borrower is in compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will 8.2.12 [Maximum Leverage Ratio] both before and after such incurrence and no Event of Default may be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentcaused thereby.
Appears in 1 contract
Indebtedness. CreateState Auto Mutual shall not, incurnor shall it permit any of its Material Subsidiaries to, assume create, incur or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):Indebtedness except:
(a) Obligations of the Loan Parties under the Loan DocumentsIndebtedness created pursuant hereto;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect outstanding on the date hereof and listed in Part A of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromSchedule I hereto;
(c) Indebtedness of Material Subsidiaries of State Auto Mutual to State Auto Mutual or to other Material Subsidiaries of State Auto Mutual;
(d) Indebtedness not greater than $100,000,000 in principal amount incurred after November 1, 2003 and no later than December 31, 2003 by State Auto Financial pursuant to a note offering exempt from the registration requirements of the Securities Act of 1933, as amended (the "Placed Debt"), which Placed Debt at all times shall be on terms consistent in all material respects with those disclosed to the Agent and the Lenders prior to the Effective Date (the "Previously Disclosed Terms"), and any Indebtedness, not greater than $100,000,000 in principal amount and otherwise on terms not more restrictive on or otherwise less favorable to State Auto Financial in any material respect to Capital Leases than the Previously Disclosed Terms, in exchange therefor, whether or not the notes, debentures or other instruments evidencing such exchange Indebtedness are exempt from such registration requirements (without limiting the generality of the foregoing, it is the intention hereby that the terms of the Placed Debt, including the effect of any modification thereof, and purchase money the terms of any Indebtedness in an amount exchange or replacement thereof, (i) provide for a final scheduled maturity not earlier than December 31, 2010 and (ii) otherwise shall not be more restrictive on, or otherwise less favorable to, State Auto Financial in any material respect than the Previously Disclosed Terms); and
(e) additional Indebtedness of State Auto Mutual and its Material Subsidiaries (including, without limitation, Capital Lease Obligations and other Indebtedness secured by Liens permitted under Sections 4.6(j) or 4.6(k) hereof) up to exceed but not exceeding $1,000,000 15,000,000 in the aggregate at any one time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject outstanding as to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated described in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent4.7(e).
Appears in 1 contract
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of the Loan Parties Indebtedness under the Loan Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(bin respect of capital leases, Synthetic Lease Obligations and purchase money obligations for fixed or capital assets, including real estate, within the limitations set forth in Section 7.01(i), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect constituting an Investment permitted pursuant to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such assetSection 7.02(c);
(d) Indebtedness of a Subsidiary acquired or assumed after the SBA PPP LoanClosing Date and Indebtedness of a Person merged or consolidated with or into the Company or any of its Subsidiaries after the Closing Date, which Indebtedness in each case existed at the time of such acquisition, merger, consolidation or conversion into the Company or a Subsidiary and was not created in contemplation of such event and where such acquisition, merger or consolidation is permitted by this Agreement and any Liens securing such Indebtedness shall be in compliance with Section 7.01(k) and any refinancing, renewals or extensions thereof, provided that amount of the Indebtedness secured thereby is not increased at the time of such refinancing, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder; provided that no Default shall result from the assumption of such Indebtedness (regardless of principal amount);
(e) Indebtedness of Subsidiaries of the Company (including any existing bilateral Indebtedness of such Subsidiaries but excluding any Indebtedness of such Subsidiaries under the Loan Documents) in respect an aggregate principal amount not to exceed at any time the greater of Swap Contracts designed (i) U.S.$600,000,000 and (ii) 10% of Consolidated Net Worth, determined as of the end of the then immediately preceding fiscal year; provided that, such permissible amount referred to hedge against interest rates, foreign exchange rates or commodities pricing risks in clauses (i) and (ii) of this clause (e) shall be reduced by any Indebtedness of any Subsidiaries of the Company that is incurred in the ordinary course of business and not for speculative purposesoutstanding under Section 7.03(f);
(f) secured Indebtedness of the Company and its Subsidiaries incurred in connection with the Liens permitted under Section 7.01(n) in an aggregate principal amount not to exceed U.S.$100,000,000 at any time; 95 sf-3344711
(g) unsecured Indebtedness of the Company if, after giving effect to such Indebtedness, the Company shall be in compliance with the financial covenants set forth in Section 7.12 on a pro forma basis as of the last day of the fiscal quarter most recently ended;
(h) Indebtedness permitted by any Loan Party Section 7.01(j);
(i) Indebtedness constituting all payment and reimbursement obligations due in respect of letters all Performance Credits, performance-based bank guarantees and performance-based surety bonds, provided that, such obligations are repaid within three Business Days of creditbecoming due and payable; and
(j) Indebtedness in respect of cash management operations, bank guaranteesnetting services, bankers’ acceptancescash pooling arrangements, warehouse receipts or automatic clearinghouse arrangements, daylight overdraft protections, employee credit card programs and other cash management and similar instruments issued or created arrangements in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by and any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative AgentGuarantees thereof.
Appears in 1 contract
Sources: Credit Agreement (Jacobs Engineering Group Inc /De/)
Indebtedness. CreateThe Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist guaranty, or otherwise become or remain directly or indirectly liable with respect to, any Indebtedness, except except:
(i) the followingObligations;
(ii) Indebtedness arising under the Related Agreements;
(iii) Indebtedness in respect of the Capital Securities;
(iv) Additional Parent Debt in an aggregate principal amount not to exceed $200,000,000 at any time outstanding; provided, without duplication (which constitutes “Permitted Indebtedness”):
that all such Indebtedness (a) Obligations shall be unsecured, (b) shall be incurred after the Closing Date and (c) shall be extinguished on or prior to the consummation of the Loan Parties under the Loan DocumentsAssurant IPO;
(bv) Surviving Indebtedness listed existing on the Closing Date and set forth on Schedule 7.03(b)6.2, but but, in each case, not any extensions, renewals or replacements of such Indebtedness except (ia) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (iib) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (ia) or (iib) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, refinanced or (C) be incurred, created or assumed if any Potential Event of Default or Event of Default has occurred and is continuing or would result therefrom;
(cvi) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured owing by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing Borrower to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02Subsidiary; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) that all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, case is reasonably satisfactory to the Collateral Administrative Agent;
(jvii) unsecured Indebtedness owing by any wholly-owned Subsidiary of the Borrower to the Borrower or to another wholly-owned Subsidiary of the Borrower;
(other than for borrowed moneyviii) Indebtedness owing by any non-wholly-owned Subsidiary of the Borrower to the Borrower or to a wholly-owned Subsidiary of the Borrower; provided, $650,000,000 CREDIT AGREEMENT that may be deemed the aggregate principal amount of all such Indebtedness under this clause (ix) shall not exceed $10,000,000 at any time outstanding;
(ix) purchase money Indebtedness and Capital Leases, in each case incurred in the ordinary course of business after the Closing Date, (a) in an aggregate principal amount (including the capitalized portion of any Capital Leases) not to exist pursuant to exceed $3,000,000 at any bona fide warranty time outstanding and (b) any Capital Lease in connection with the Ohio Sale/leaseback Transaction;
(x) Indebtedness of any Insurance Subsidiary in respect of letters of credit issued under letter of credit facilities and (a) securing obligations under Reinsurance Agreements or contractual service obligations or performance Retrocession Agreements entered into in the ordinary course of business of the Loan Parties;
such Subsidiary or (kb) Indebtedness issued in respect lieu of the convertible notes; provided thatdeposits to satisfy any requirements imposed by any Applicable Insurance Regulatory Authority, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment any case to the payment in full (other than any payment as a result extent such letters of the conversion of such convertible notes into Equity Interests of Parent) credit are not drawn upon or, if and to the Obligations;
extent drawn upon, such drawing is reimbursed not later than ten (l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (18010) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock receipt by such Subsidiary of notice of payment on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes such letter of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.credit;
Appears in 1 contract
Sources: Credit Agreement (Assurant Inc)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of the Loan Parties Indebtedness under the Loan Documents;
Documents (b) Surviving Indebtedness listed on Schedule 7.03(b)including, but not any extensionswithout limitation, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in connection with the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness Ventas Purchase Option ABL Loans in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such principal amount of Converting ABL Loans immediately prior to the Ventas Purchase Option Assignment);
(b) Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect Borrowers and their Restricted Subsidiaries set forth in Schedule 8.03 (and renewals, refinancings and extensions thereof (not exceeding the principal amount of the Indebtedness so renewed, refinanced or extended) on terms and conditions not materially less favorable (taken as a whole) to such assetthe applicable debtor(s) or to the Lenders);
(c) intercompany Indebtedness permitted under Section 8.02;
(d) obligations (contingent or otherwise) of the SBA PPP Loan;
(e) Indebtedness in respect of Borrowers or any Restricted Subsidiary existing or arising under any Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred Contract entered into in the ordinary course of business and not for speculative purposes;
(fe) purchase money Indebtedness incurred by any Loan Party (including obligations in respect of letters Capital Leases or Synthetic Leases) hereafter incurred by the Borrowers or any of credittheir Restricted Subsidiaries to finance the purchase of fixed assets, bank guaranteesand renewals, bankers’ acceptancesrefinancings and extensions thereof; provided that (i) the total of all such Indebtedness for all such Persons taken together shall not exceed an aggregate principal amount of the greater of (A) $190,000,000 and (B) 40% of Consolidated EBITDA at any one time outstanding; (ii) such Indebtedness when incurred shall not exceed the purchase price of the asset(s) financed; and (iii) no such Indebtedness shall be refinanced for a principal amount in excess of the principal balance outstanding thereon at the time of such refinancing (other than for interest, warehouse receipts or similar instruments issued or created in the ordinary course of businesspremiums, including penalties and fees);
(f) Securitization Transactions (solely in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect Collateral of a type that would not constitute ABL Priority Collateral) in an aggregate principal amount at any one time outstanding not to reimbursement-type obligations regarding workers compensation claimsexceed the greater of (A) $75,000,000100,000,000 and (B) 25% of Consolidated EBITDA;
(g) intercompany Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not under the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPLHP Cash Management Transfer System;
(h) Indebtedness consisting under performance bonds, surety bonds, letter of guarantees resulting from endorsement of negotiable instruments credit obligations to provide security for collection by any Loan Party workers’ compensation claims and bank overdrafts, in each case in the ordinary course of business;
(i) Indebtedness in the form of trade payables and accrued expenses incurred in the ordinary course of business;
(j) other Indebtedness in an aggregate principal amount not to exceed the greater of (iA) $190,000,000215,000,000 and (B) 4045 % of Consolidated EBITDA at any Loan Party owing to one time outstanding;
(k) Indebtedness of the Borrowers or any other Loan Party and in the form of loans from the Captive Insurance Subsidiary in an aggregate principal amount at any time outstanding not to exceed twenty percent (ii20%) of the total assets of the Captive Insurance Subsidiary, as shown on the most recent balance sheet of the Captive Insurance Subsidiary in accordance with GAAP;
(l) Earn-Out Obligations not to exceed $10,000,000 in the aggregate at any one time outstanding;
(m) Guarantees by any Borrower or its Restricted Subsidiaries of Indebtedness owed permitted to be incurred by a such Borrower or Restricted Subsidiary in accordance with the provisions of this Agreement; provided that in the event such Indebtedness that is not a Guarantor Subsidiary to being Guaranteed is Subordinated Indebtedness, then any related Guarantee of any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral AgentLoans;
(jn) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance of the Loan Parties incurred in the ordinary course of business under financing arrangements related to the prepayment of premiums and deductibles under the Loan Parties’ insurance policies;
(ko) Indebtedness in respect of Non-Guarantor Restricted Subsidiaries, together with any Indebtedness incurred by Non-Guarantor Restricted Subsidiaries pursuant to Section 8.03(u) and to Section 8.03(v) below not to exceed the convertible notes; provided that, all such Indebtedness in respect greater of the convertible notes shall be unsecured (A) $190,000,000 and subordinated in right (B) 40% of payment to the payment in full (other than Consolidated EBITDA at any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligationsone time outstanding;
(lp) other unsecured Indebtedness(a) Indebtedness incurred pursuant to the Term Loan Facility by the Borrowers or any Loan Party in an aggregate principal amount of commitments, loans or letters of credit thereunder (without any duplication thereof) not to exceed the sum of (x) $900,000,000 and (y) any incremental loan facilities permitted thereunder as in effect on the Amendment No. 1 Effective Date; provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable is subject to the Administrative Agent terms of the Intercreditor Agreement in its sole discretion. For purposes the capacity of determining compliance with this Section 7.03“Term Loan Obligations” and (b) after consummation of the Ventas Purchase Option, all Obligations outstanding Indebtedness assigned to the Ventas Assignees under the Term Loan Documents will be deemed Facility in an amount equal to have been incurred the Ventas Purchase Option Term Loan Amount (as defined in reliance only the Term Loan Credit Agreement as in effect on the exception Original Closing Date) (the “Ventas Purchase Option Term Loans”) (provided that the guarantees in clause (a) respect of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder by Parent, Borrowers and expressly Loan Parties thereunder shall be subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.Non-Ventas Purchase Option ABL Loans);
Appears in 1 contract
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of Indebtedness existing on the Loan Parties under the Loan Documents;
(b) Surviving Indebtedness listed on date hereof and set forth in Schedule 7.03(b)6.01, but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the interest rate with respect thereto and other terms and conditions thereof are not no less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, extended and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, PROVIDED that such Indebtedness permitted under the immediately preceding clause (i) or clause (ii) above shall not be (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount which exceeds the Indebtedness being renewed, extended or refinanced, refinanced or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(cb) Indebtedness with respect to Capital Leases created hereunder and purchase money under the other Loan Documents; PROVIDED that no principal amount of Indebtedness under any Local Facility described in clause (b) of the definition of "Local Facility" may be incurred unless the Tranche A Exposure shall be simultaneously and permanently reduced by an aggregate amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any less than such Indebtedness principal amount;
(xi) in the case of additional Capital Leases or purchase money IndebtednessUCAR, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtednessany Senior Subordinated Guarantee, as the case may be, and (yii) in the case of purchase money Indebtednessthe Borrower, shall constitute Senior Subordinated Notes in an aggregate principal amount (the "Subordinated Principal") not to exceed the sum of (A) $200,000,000 and (B) the aggregate principal amount of Senior Subordinated Notes issued after the Effectiveness Date in payment of interest thereon pursuant to the terms thereof (less than 75% the principal amount of any Senior Subordinated Notes that is repaid after the Effectiveness Date) and (iii) in the case of the Borrower, Refinancing Notes in an aggregate consideration paid principal amount not to exceed the sum at the time immediately prior to issuance and refinancing of (A) the Subordinated Principal, (B) any premium payable and reasonable expenses incurred in connection with respect to such assetrefinancing and (C) if the Refinancing Notes are issued at a time when there is accrued but unpaid interest on the Subordinated Principal, the amount of such accrued but unpaid interest;
(d) in the SBA PPP Loancase of the Guarantors, the Guarantees under the Guarantee Agreements;
(e) Indebtedness of the Borrower and the Subsidiaries pursuant to Interest/Exchange Rate Protection Agreements entered into in respect order to fix the effective rate of Swap Contracts designed interest, or to hedge against interest ratescurrency fluctuations, foreign exchange rates or commodities pricing risks incurred in on the ordinary course of Loans and other Indebtedness (PROVIDED that such transactions shall be entered into for business purposes and not for speculative purposesthe purpose of speculation);
(f) Indebtedness incurred by any Loan Party owed to (including obligations in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in credit for the ordinary course of business, including in respect of workers compensation claimsbenefit of) any person providing worker's compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or self-insurance any Subsidiary, pursuant to reimbursement or other Indebtedness with respect indemnification obligations to reimbursement-type obligations regarding workers compensation claimssuch person;
(g) in the case of the Credit Parties, Indebtedness incurred by any Loan Party in respect of accounts payable Letters of Credit issued hereunder and Indebtedness under the Local Facility Loan Documents, subject to trade creditors for goods and services and current operating liabilities the proviso set forth in paragraph (not the result of the borrowing of moneyb) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of businessabove;
(i) Indebtedness of (i) the Borrower or any Loan Party owing Wholly Owned Subsidiary that is a Guarantor to any other Loan Party and Subsidiary or to the Borrower; (ii) Indebtedness owed by a of the Borrower or any Wholly Owned Subsidiary that is not a Guarantor to any Subsidiary; (iii) Indebtedness of any Subsidiary to any Loan Party the Borrower or another Subsidiary incurred pursuant to a Permitted Foreign Transfer; and (iv) so long as at the time of incurrence no Default or Event of Default shall have occurred and be continuing, Indebtedness of UCAR to the extent such Indebtedness is Borrower incurred for the purpose of making permitted as investments in Unrestricted Subsidiaries (and in an Investment pursuant amount limited to Section 7.02; provided, thatthe amount of investments so permitted), in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant compliance with the provisions of the Pledge Agreement to the Collateral Documents and extent applicable to such Indebtedness;
(Bi) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to Borrower or a Subsidiary which represents the terms assumption by the Borrower or such Subsidiary of Indebtedness of a Subsidiary in connection with the applicable promissory notes permitted merger of such Subsidiary with or an intercompany subordination agreement that in any into the assuming person or the purchase of all or substantially all the assets of such case, is reasonably satisfactory to the Collateral AgentSubsidiary;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to of the Borrower or any bona fide warranty or contractual service Subsidiary in respect of performance bonds, bid bonds, appeal bonds, surety bonds and similar obligations or performance and trade-related letters of credit, in each case provided in the ordinary course of business business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business, and any extension, renewal or refinancing thereof to the Loan Partiesextent not provided to secure the repayment of other Indebtedness and to the extent that the amount of refinancing Indebtedness is not greater than the amount of Indebtedness being refinanced;
(k) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in respect the ordinary course of the convertible notesbusiness; provided that, all PROVIDED that such Indebtedness in respect is extinguished within two Business Days of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligationsits incurrence;
(l) Indebtedness of a Subsidiary acquired after the date hereof, Indebtedness of a corporation merged or consolidated with or into the Borrower or a Subsidiary after the date hereof and Indebtedness permitted under Section 6.10(b) at the time of incurrence of such Indebtedness of any subsidiary included in South Africa at the time such subsidiary becomes a Subsidiary, which Indebtedness in each case exists at the time of such acquisition, merger, consolidation or conversion into a Subsidiary and is not created in contemplation of such event and where such acquisition, merger or consolidation is permitted by this Agreement, PROVIDED that the aggregate principal amount of Indebtedness under this paragraph (l) shall not exceed $25,000,000 for the Borrower and all Subsidiaries other than those included in South Africa;
(m) Indebtedness of South Africa or any direct or indirect parent company of South Africa incurred on an unsecured Indebtednessbasis in connection with the acquisition of all or substantially all the equity interests not already owned by the Borrower or any Subsidiary in each subsidiary included in South Africa in an aggregate principal amount not in excess of $80,000,000 outstanding at any time;
(n) Capital Lease Obligations, mortgage financings and purchase money Indebtedness incurred by the Borrower or any Subsidiary prior to or within 270 days after a Capital Expenditure permitted under Section 6.11 in order to finance such Capital Expenditure, and extensions, renewals and refinancings thereof if the interest rate with respect thereto and other terms thereof are no less favorable to the Borrower or such Subsidiary than the Indebtedness being refinanced and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced; provided that such refinancing Indebtedness matures shall not less than one hundred eighty be (180i) days following Indebtedness of an obligor that was not an obligor with respect to the Last Out Maturity DateIndebtedness being extended, renewed or refinanced, (ii) in a principal amount which exceeds the Indebtedness being renewed, extended or refinanced or (iii) incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(o) Capital Lease Obligations incurred by the Borrower or any Subsidiary in respect of any Sale and Leaseback Transaction that is permitted under Section 6.03;
(p) Indebtedness of the Borrower or any Subsidiary supported by a Revolving Letter of Credit, in a principal amount not in excess of the stated amount of such Revolving Letter of Credit and in an aggregate principal amount for all such Indebtedness at any time outstanding not in excess of $200,000,000; PROVIDED that the aggregate outstanding principal amount of Indebtedness of foreign Subsidiaries issued under this paragraph (p) or that is issued under Section 6.01(q) and guaranteed by the Borrower or any domestic Subsidiary shall not at any time exceed $200,000,000;
(q) other Indebtedness of the Borrower and the Subsidiaries in an aggregate principal amount at any time outstanding not in excess of the amount determined as set forth on Schedule A in effect at such time (it being agreed that any such Indebtedness permitted when incurred shall not cease to be permitted as a result of a subsequent change in the Leverage Ratio) incurred on an unsecured basis; PROVIDED that up to $20,000,000 of such amount may be incurred on a secured basis; and PROVIDED FURTHER that the aggregate outstanding principal amount of Indebtedness of foreign Subsidiaries under Section 6.01(p) or that is issued under this paragraph (q) and guaranteed by the Borrower or any domestic Subsidiary shall not at any time exceed $200,000,000;
(r) Indebtedness of UCAR consisting of contingent liabilities or Indebtedness of the type referred to in the proviso contained in the definition of "Unrestricted Subsidiary"; and
(ms) the 2021 Preferred Stock all premium (if any), interest (including post-petition interest), fees, expenses, indemnities, charges and additional or contingent interest on terms reasonably acceptable to the Administrative Agent obligations described in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause clauses (a) of this Section 7.03through (r) above. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create in this Agreement or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee Document, no Refinancing Notes shall be issued (and no Indebtedness shall be incurred under the Refinancing Note Indenture) unless: (a) concurrently with the issuance of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated Refinancing Notes, Senior Subordinated Notes in a principal amount equal to the Loans principal amount of such Refinancing Notes (less any amount issued pursuant to clause (iii)(B) or (iii)(C) of paragraph (c) above) shall have been redeemed (or called for redemption, so long as the redemption price has been indefeasibly deposited with the trustee in respect of such Senior Subordinated Notes (the "Trustee")) and cancelled upon delivery to the Trustee, at a price not in excess of 100% of the principal amount thereof (plus interest accrued to the date of redemption and not paid in cash and plus any premium in respect of such redemption), (b) the terms of the Refinancing Notes and the Refinancing Note Indenture (other Obligations in a manner than the interest rate, the interest payment dates and on terms any redemption premiums, which shall be determined at the time of issuance of the Refinancing Notes) shall be reasonably satisfactory to the Administrative AgentRequired Lenders (PROVIDED, HOWEVER, that such terms of the Refinancing Notes and the Refinancing Note Indenture shall be deemed to be satisfactory to the Required Lenders if the Refinancing Notes are issued with substantially the same terms as the Senior Subordinated Notes that are being refinanced (other than any changes thereto that are not adverse in any respect to the interests of the Lenders)), (c) the interest rate of the Refinancing Notes shall be a fixed, non-increasing interest rate per annum not in excess of the rate payable in respect of the Senior Subordinated Notes, payable on a principal amount of the Refinancing Notes not in excess of the gross proceeds of the sale thereof and interest on the Refinancing Notes shall be payable semiannually and (d) the Refinancing Notes shall mature not earlier than the maturity date of the Senior Subordinated Notes.
Appears in 1 contract
Indebtedness. Create(a) No Credit Party shall create, incur, assume or suffer permit to exist any Indebtedness, except the following, (without duplication (which constitutes “Permitted Indebtedness”):duplication)
(a) Obligations of the Loan Parties under the Loan Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals Indebtedness secured by purchase money security interests and extensions expressly provided for Capitalized Leases permitted in clause (c) of Section 6.7 and refinancings thereof or amendments or modifications thereof which do not have the agreements evidencing any such Indebtedness as effect of increasing the same principal amount thereof or changing the amortization thereof (other than to extend the same) and which are in effect otherwise on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not no less favorable in the aggregate to the obligor thereon any Credit Party, Agent or to the Lenders any Lender than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that terms of the Indebtedness being refinanced refinanced, amended or extended; providedmodified, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall the Revolving Loans and the other Obligations, (iii) unfunded pension fund and other employee benefit plan obligations and liabilities to the extent they are permitted to remain unfunded under applicable law to the extent the same consists of Indebtedness, (iv) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereof which do not have the effect of increasing the principal amount thereof or changing the amortization thereof (Aother than to extend the same) include Indebtedness and which are otherwise on terms and conditions no less favorable in the aggregate to any Credit Party, Agent or any Lender than the terms of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, amended or modified, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(cv) Indebtedness consisting of intercompany loans and advances made by any Credit Party to any other Credit Party, provided such loans and advances are subordinated to the Obligations and any instrument evidencing such loans and advances has been pledged to Agent as security for the repayment of the Obligations; (vi) Guaranteed Indebtedness to the extent permitted under Section 6.6; (vii) Indebtedness of Credit Parties owing in respect of documentary letters of credit for the purchase of goods or other merchandise (but not in respect of standby, direct pay of other letters of credit other than the Letters of Credit hereunder), (viii) Indebtedness in the form of a holdback note or deferral of a portion of the purchase price in connection with respect an acquisition permitted pursuant to Capital Leases Sections 6.1 and 6.2 in an amount not to exceed 25% of the purchase money price of such acquisition, provided that such Indebtedness is subordinated to the Obligations in form and substance satisfactory to Agent; (ix) Indebtedness assumed or acquired in connection with an acquisition permitted pursuant to Sections 6.1 and 6.2 in an amount not to exceed $1,000,000 5,000,000 at any time outstanding so long as such Indebtedness was not incurred in contemplation of such acquisition; (x) Indebtedness consisting of Hedging Obligations of the aggregate Credit Parties, (xi) Indebtedness consisting of synthetic leases to the extent permitted pursuant to Section 6.12 and (xii) other unsecured Indebtedness incurred or acquired after the Closing Date not to exceed $5,000,000 at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;.
(db) the SBA PPP Loan;
(e) Indebtedness No Credit Party shall, directly or indirectly, voluntarily purchase, redeem, defease or prepay any principal of, premium, if any, interest or other amount payable in respect of Swap Contracts designed to hedge against interest ratesany Indebtedness, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
than (i) Indebtedness of (i) any Loan Party owing to any other Loan Party and the Obligations, (ii) Indebtedness owed secured by a Subsidiary that is not Permitted Encumbrance if the asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Section 6.8, (iii) Indebtedness prepaid with proceeds of a Guarantor Subsidiary to any Loan Party refinancing to the extent such Indebtedness permitted under 6.3, (iv) Senior Unsecured Debt to the extent payment is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents Schedule 6.13 and (Bv) all such other Indebtedness shall be unsecured and subordinated not in right excess of payment $1,000,000 so long as after giving effect to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such casepurchase, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty redemption, defeasance or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion prepayment of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party Borrower shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee Net Borrowing Availability of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentat least $5,000,000.
Appears in 1 contract
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness, except the following, (without duplication (which constitutes “Permitted Indebtedness”duplication):
(a) Obligations of Indebtedness existing on the Loan Parties under the Loan Documents;
(bdate hereof and set forth in Schedule 6.01(a) Surviving Indebtedness listed on Schedule 7.03(b), but not and any extensions, renewals or replacements of such Indebtedness except existing mortgages and Capital Lease Obligations; provided, however, that (i) renewals and extensions expressly provided for in the agreements evidencing principal amount of any such Indebtedness as extension, renewal or replacement shall not exceed the same are in effect on principal amount of the date of this Agreement and mortgage or Capital Lease Obligation so extended, renewed or replaced, (ii) refinancings the mortgage or Capital Lease Obligation so extended, renewed or replaced shall not be secured by any property or asset that was not already pledged to secure the existing mortgage or Capital Lease Obligation, and extensions of any (iii) such Indebtedness if extension, renewal or replacement is not on terms materially more restrictive to the terms and conditions thereof are not Company or its Subsidiaries or materially less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced mortgage or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being Capital Lease Obligation so extended, renewed or refinancedreplaced;
(b) Indebtedness represented by the Loan Documents; provided, however, that Indebtedness consisting of commercial paper of the Company may also be incurred pursuant to this clause (Bb) exceed in a to the extent the sum of such Indebtedness and the aggregate principal amount of Loans then outstanding do not exceed the Indebtedness being renewed, extended or refinanced, or Total Commitment at such time (Csubject to Section 6.01(m) be incurred, created or assumed if any Default or Event to the extent in excess of Default has occurred and is continuing or would result therefrom;$250,000,000).
(c) Indebtedness incurred upon the acquisition of any property or asset secured by Liens on such property or asset in accordance with respect to Capital Leases and Section 6.02(b); provided, however, that the amount of such Indebtedness shall not exceed the purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that price of any such Indebtedness (x) in the case of additional Capital Leases property or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP LoanIndebtedness secured by Liens permitted under Section 6.02(i), 6.02(j) or 6.02(m);
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks Subsidiaries existing at the time they are acquired by the Company and not incurred in the ordinary course contemplation of business and not for speculative purposessuch acquisition;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsof Subsidiaries not prohibited by Section 6.09;
(g) at any time prior to the Distribution, Indebtedness of (i) the Company to any wholly owned Subsidiary, Choice Hotels International or Quality Hotels; (ii) any wholly owned Subsidiary, Choice Hotels International or Quality Hotels to the Company; (iii) any Subsidiary (other than the Pharmacy Subsidiary), Choice Hotels International or Quality Hotels to any wholly owned Subsidiary (or to Choice Hotels International or Quality Hotels); and (iv) the Pharmacy Subsidiary to the Company and Manor HealthCare, as applicable, incurred by pursuant to or in connection with the Pharmacy Subsidiary Agreements in an aggregate principal amount not to exceed $60,000,000 outstanding at any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested or the Company and Manor HealthCare, as applicable, to the Pharmacy Subsidiary (for the purposes of this clause (g), "wholly owned Subsidiary" includes any wholly owned subsidiary of Choice Hotels International and/or Quality Hotels, any Subsidiary that would otherwise constitute a wholly owned Subsidiary but for directors' qualifying shares or similar matters, and any Subsidiary the only direct shareholders, members or participants in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPwhich are wholly owned Subsidiaries, Choice Hotels International or Quality Hotels);
(h) at any time following the Distribution, Indebtedness consisting of guarantees resulting from endorsement (i) the Company to any wholly owned Subsidiary; (ii) any wholly owned Subsidiary to the Company; (iii) any Subsidiary (other than the Pharmacy Subsidiary) to any wholly owned Subsidiary; and (iv) the Pharmacy Subsidiary to the Company and Manor HealthCare, as applicable, incurred pursuant to or in connection with the Pharmacy Subsidiary Agreements in an aggregate principal amount not to exceed $60,000,000 outstanding at any time, or the Company and Manor HealthCare, as applicable, to the Pharmacy Subsidiary (for the purposes of negotiable instruments this clause (g), "wholly owned Subsidiary" includes any Subsidiary that would otherwise constitute a wholly owned Subsidiary but for collection by directors' qualifying shares or similar matters, and any Loan Party Subsidiary the only direct shareholders, members or participants in the ordinary course of businesswhich are wholly owned Subsidiaries);
(i) Indebtedness represented by notes or letters of (i) credit issued for the account of the Company or any Loan Party owing to any other Loan Party Subsidiary in connection with insurance policies and (ii) Indebtedness owed by in a Subsidiary that is not a Guarantor Subsidiary to any Loan Party form substantially similar to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to or letters of credit issued for the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full account of the Obligations pursuant to the terms Company or any Subsidiary set forth in Schedule 6.01(i) issued in connection with existing insurance policies of the applicable promissory notes Company or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral AgentSubsidiary;
(j) unsecured Indebtedness (represented by patient fund bonds, utility bonds, performance bonds, state self insurance bonds and miscellaneous other bonds other than for borrowed moneythose existing on the date hereof and listed in Schedule 6.01(a) that may be deemed (including any extensions, renewals and replacements), the aggregate principal amount of such Indebtedness at any one time not to exist pursuant exceed $20,000,000 (subject to any bona fide warranty or contractual service obligations or performance Section 6.01(m) to the extent in the ordinary course excess of business of the Loan Parties$20,000,000);
(k) Indebtedness in respect of the convertible notesPharmacy Subsidiary; provided thatprovided, all such however, that Indebtedness in respect of the convertible notes Pharmacy Subsidiary to the Company and Manor HealthCare, as applicable, shall be unsecured and subordinated in right of payment subject to the payment limitations set forth in full paragraphs (g)(iv) and (h)(iv) of Section 6.01; and provided further, that the aggregate amount of Guarantees by the Company or any other than any payment as a result Subsidiary of Indebtedness of the conversion Pharmacy Subsidiary, together with the aggregate principal amount of such convertible notes into Equity Interests outstanding Indebtedness of Parent) the Pharmacy Subsidiary to the ObligationsCompany and Manor HealthCare, may not exceed $60,000,000;
(l) other unsecured IndebtednessIndebtedness of the Company consisting of Guarantees in connection with pension and deferred compensation arrangements arising in connection with the Distribution; provided, provided however, that the aggregate amount of such Indebtedness matures shall not less than one hundred eighty (180) days following the Last Out Maturity Dateexceed $10,000,000; and
(m) other unsecured Indebtedness of the 2021 Preferred Stock on terms reasonably acceptable Company in an aggregate principal amount at any one time outstanding not to exceed $300,000,000; provided, however, that the Administrative Agent covenants and events of default contained in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder with an aggregate principal amount in excess of $10,000,000 shall not be more restrictive of the Company and expressly subordinated to the Loans and other Obligations its Subsidiaries than those in a manner and on terms satisfactory to the Administrative Agentthis Agreement.
Appears in 1 contract
Sources: Competitive Advance and Multi Currency Revolving Credit Facility Agreement (Manor Care Inc/New)
Indebtedness. Create, Borrower shall not incur, assume create, assume, become or suffer be liable in any manner with respect to, or permit to exist exist, any Indebtednessobligations or indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):
(a) Obligations of the Loan Parties under the Loan Documents;
Obligations; (b) Surviving Indebtedness listed trade obligations and normal accruals in the ordinary course of business not yet due and payable, or with respect to which Borrower is contesting in good faith the amount or validity thereof by appropriate proceedings diligently pursued and available to Borrower, and with respect to which adequate reserves have been set aside on its books; (c) purchase money indebtedness (including capital leases) to the extent not incurred or secured by liens (including capital leases) in violation of any other provision of this Agreement; (d) the indebtedness set forth on Schedule 7.03(b)9.9 hereto and the indebtedness, but not any extensionsexisting as of the date hereof, renewals or replacements in respect of letters of credit obligations with the Bank of Montreal and the Toronto-Dominion Bank; (e) the Senior Note Indebtedness; (f) the indebtedness incurred pursuant to a Permitted Refinancing; (g) regularly scheduled payments of interest and scheduled payment of principal on maturity each in respect of the Senior Note Indebtedness and each in accordance with the terms of the Trust Indenture; (h) upon an issue of additional equity, redeem up to 35% of the aggregate principal amount of Securities (as such Indebtedness except term is defined in the Trust Indenture) in accordance with the terms set out in Section 1101 of the Trust Indenture; and (i) renewals enter into private placement transactions in respect of the Senior Notes pursuant to Section 3(a)(9) of the Securities Act of 1933. For greater certainty and extensions expressly provided for in without limiting the agreements evidencing foregoing Borrower shall not, directly or indirectly, (a) amend, modify, alter or change the terms of such indebtedness or any such Indebtedness agreement, document or instrument related thereto as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if hereof except that Borrower may amend, modify, alter or change the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Senior Note Indebtedness being refinanced or extended; providedonly with the prior written consent of Lender, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinancedits discretion, or (Cb) be incurredredeem, created retire, defease, purchase or assumed if otherwise acquire such indebtedness, or set aside or otherwise deposit or invest any Default sums for such purpose except that Borrower may redeem, retire, defease, purchase or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in otherwise acquire the aggregate at any time outstanding; provided that any such Senior Note Indebtedness (xincluding, necessary amendments to the Senior Notes and Trust Indenture in respect thereof) only with the prior written consent of Lender, in the case of additional Capital Leases its discretion. Borrower shall furnish to Lender all notices or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset demands in connection with such indebtedness either received by Borrower or on its behalf, promptly after the incurrence of such Indebtednessreceipt thereof, or sent by Borrower or on its behalf, concurrently with the sending thereof, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Loan Agreement (Imax Corp)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of the Loan Parties Indebtedness under the Loan Documents;
(b) Surviving Indebtedness outstanding on the date hereof and listed on Schedule 7.03(b)7.02(b) and any refinancings, but not any extensionsrefundings, renewals or replacements extensions thereof; provided that the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable by an amount equal to the obligor thereon a reasonable premium or to the Lenders than the Indebtedness being refinanced or extendedother reasonable amount paid, and the average life to maturity thereof is greater than or fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to that of any existing commitments unutilized thereunder and the Indebtedness being refinanced direct or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an any contingent obligor with respect to the Indebtedness being extendedthereto is not changed, renewed as a result of or refinancedin connection with such refinancing, (B) exceed in a principal amount the Indebtedness being renewedrefunding, extended renewal or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromextension;
(c) Indebtedness with in respect to Capital Leases of Capitalized Leases, Synthetic Lease Obligations and purchase money obligations incurred to finance or reimburse the cost of the acquisition, development, construction, purchase, lease, repair or improvement of property (real or personal) used or useful in a Permitted Business, whether through the direct purchase of assets or the Equity Interests of any Person that owns no other assets or property than those that would be permitted to be purchased directly under this clause (c) (which Indebtedness may be issued at any time within 180 days of such acquisition, development, construction, purchase, lease, repair or improvement) and any refinancing, refunding, renewal or extension thereof consistent with the proviso to Section 7.01(b); provided, however, that the aggregate amount of all such Indebtedness at any one time outstanding shall not exceed $20,000,000;
(i) Unsecured Indebtedness of a Subsidiary of the Borrowers owed to the Borrowers or a Wholly-owned Subsidiary of the Borrowers, which Indebtedness shall (A) if owed to a Loan Party, to the extent required by the Administrative Agent, be evidenced by promissory notes which shall be pledged to the Administrative Agent as Collateral for the Secured Obligations in accordance with the terms of the Security Agreement and (B) be otherwise permitted under the provisions of Section 7.03, and (ii) Indebtedness of a Subsidiary that is not a Loan Party to another Subsidiary that is not a Loan Party (clause (i) and (ii), collectively, “Intercompany Debt”);
(e) Guarantees of (i) the Loan Parties in respect of Indebtedness otherwise permitted hereunder of the Loan Parties and (ii) Subsidiaries that are not Loan Parties of Indebtedness otherwise permitted hereunder of the Loan Parties or any other Subsidiary;
(f) Indebtedness of any Person that becomes a Subsidiary of any Borrower after the date hereof in a transaction permitted hereunder in an aggregate principal amount not to exceed $1,000,000 10,000,000, provided that such Indebtedness is existing at the time such Person becomes a Subsidiary of any Borrower and was not incurred solely in the aggregate at contemplation of such Person’s becoming a Subsidiary of such Borrower), and any time outstandingrefinancings, refundings, renewals or extensions thereof; provided that any the amount of such Indebtedness (x) in is not increased at the case time of additional Capital Leases such refinancing, refunding, renewal or purchase money Indebtednessextension except by an amount equal to a reasonable premium or other reasonable amount paid, shall be secured by the asset subject to such additional Capital Leases or acquired asset and accrued interest, fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and the incurrence of such Indebtednessdirect or any contingent obligor with respect thereto is not changed, as the case may bea result of or in connection with such refinancing, and (y) in the case of purchase money Indebtednessrefunding, shall constitute not less than 75% of the aggregate consideration paid with respect to such assetrenewal or extension;
(dg) the SBA PPP Loan;
obligations (econtingent or otherwise) Indebtedness existing or arising under any Swap Contract in respect of Swap Contracts designed to hedge against interest ratesrate, currency, foreign exchange rates or commodities pricing risks incurred commodities, provided that such obligations are (or were) entered into by such Person in the ordinary course of business and not for speculative purposes;
(fh) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
a Borrower that (ga) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods is expressly subordinate and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated junior in right of payment to the payment in full of the Obligations pursuant to the Obligations, which subordination terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is shall be reasonably satisfactory to the Collateral Administrative Agent, and (b) (i) matures, (ii) is not mandatorily redeemable or redeemable at the option of the holder thereof, in whole or in part, until and (iii) does not have any regularly scheduled payments of principal until, in each case, after the date that is six months after the Maturity Date;
(i) Indebtedness of Foreign Subsidiaries that is not guaranteed by any Borrower or Guarantor, as long as the aggregate outstanding principal amount thereof does not exceed $60,000,000 at any time;
(j) unsecured Indebtedness Contingent Obligations (a) arising from endorsements of checks, drafts or other than items of payment for borrowed moneycollection or deposit in the ordinary course of business; (b) existing on the Closing Date as set forth on Schedule 7.02(j), and any extension or renewal thereof that may be deemed to exist pursuant to any bona fide warranty does not increase the amount of such Contingent Obligation when extended or contractual service obligations or performance renewed; (c) incurred in the ordinary course of business with respect to surety, appeal or performance bonds, leases, licenses, or other similar obligations; (d) arising from customary indemnification obligations in favor of purchasers in connection with dispositions of assets permitted hereunder; (e) arising under the Loan PartiesDocuments; or (f) in an aggregate amount of $5,000,000 or less at any time;
(k) Indebtedness in respect of the convertible notesSwap Obligations permitted hereunder and Cash Management Agreements; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;and
(l) other unsecured Indebtedness, provided that such Indebtedness matures in an aggregate principal amount not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have exceed $20,000,000 at any time outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Movado Group Inc)
Indebtedness. Create, incur, assume incur or suffer to exist exist, or permit any of its Subsidiaries or any Subsidiary of Parent to create, incur or suffer to exist, any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):other than:
(a) Obligations of the Loan Parties Indebtedness created hereunder or under the Loan DocumentsNotes or any Letter of Credit;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect existing on the date hereof, as set forth in Schedule 8.02 hereto (such schedule shall not include indebtedness under the Existing Credit Facilities), and any extension of this Agreement and (ii) refinancings and extensions maturity, refinancing or other modification of any such Indebtedness if the terms and conditions thereof thereof, provided, however, that such extension, refinancing or modification (A) is pursuant to terms that are not less favorable to the obligor thereon or to the Lenders Borrower and its Subsidiaries than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that terms of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed refinanced or refinancedmodified, and (B) exceed in a principal after giving effect to the extension, refinancing or modification of such Indebtedness, the amount of such Indebtedness outstanding is not greater than the amount of such Indebtedness being renewedoutstanding immediately prior to such extension, extended refinancing or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrommodification;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such assetCapitalized Leases;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest ratesunder surety, foreign exchange rates performance or commodities pricing risks appeal bonds incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(ie) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to To the extent such the same constitutes Indebtedness, Indebtedness is secured by Liens or security interests permitted as an Investment pursuant to by Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent8.01 hereof;
(jf) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in To the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes extent same shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured constitute Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity DateCollective Bargaining Agreements or extensions or renewals of same; and
(mg) the 2021 Preferred Stock on terms reasonably acceptable Indebtedness representing loans to the Administrative Agent Guarantors not to exceed on an aggregate net basis (reflecting the netting of amounts advanced against payments received) at any time the sum of $5,000,000 (such loans only to be made to the extent necessary or advisable in its sole discretion. For purposes connection with the operation of determining compliance with this Section 7.03Video or the Parent, all Obligations outstanding under respectively as Chapter 11 Debtors (but not for any purpose for which the Loan Documents will Borrower would be deemed to have been incurred in reliance only on restricted by the exception in clause (a) terms of this Section 7.03. Notwithstanding anything to Agreement or the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative AgentOrders).
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Golden Books Family Entertainment Inc)
Indebtedness. CreateThe Credit Parties will not permit any of their Subsidiaries to contract, create, incur, assume or suffer permit to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of Indebtedness arising under this Credit Agreement and the Loan Parties under the Loan other Credit Documents;
(b) Surviving purchase money Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements (including obligations in respect of such Indebtedness except Capital Leases) hereafter incurred to finance the purchase of fixed assets provided that (i) renewals and extensions expressly provided for in the agreements evidencing any total of all such Indebtedness, together with all such Indebtedness as of the same are in effect on Borrower secured by Liens permitted by clause (vi) of the date definition of this Agreement and “Permitted Liens”, shall not exceed an aggregate principal amount of $50,000,000 at any one time outstanding; (ii) refinancings and extensions of any such Indebtedness if when incurred shall not exceed the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that purchase price of the Indebtedness being refinanced or extendedasset(s) financed; provided, and (iii) no such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in be refinanced for a principal amount in excess of the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event principal balance outstanding thereon at the time of Default has occurred and is continuing or would result therefromsuch refinancing;
(c) Indebtedness with respect to Capital Leases set forth in Schedule 8.1 and purchase money Indebtedness in an any renewals, refinancings or extensions thereof (without increasing the amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such assetthereof);
(d) the SBA PPP Loan;
(e) Indebtedness obligations in respect of Swap Contracts designed Hedging Agreements entered into in order to hedge against manage existing or anticipated interest rates, foreign rate or exchange rates or commodities pricing rate risks incurred in the ordinary course of business and not for speculative purposes;
(e) intercompany Indebtedness arising out of loans, advances and Guaranty Obligations permitted under Section 8.6;
(f) other Indebtedness, provided that the aggregate outstanding principal amount of such Indebtedness incurred shall not exceed the difference between (i) 10% of Consolidated Tangible Assets minus (ii) the aggregate outstanding principal amount of Indebtedness of the Borrower secured by any Loan Party in respect Liens permitted by clause (xix) of letters the definition of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsPermitted Liens;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;Permitted Government Revenue Bond Indebtedness; and
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured Sale and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Leaseback Transactions permitted by Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent8.13.
Appears in 1 contract
Indebtedness. CreateNeither Holdings nor the Borrower will (nor will they permit any of the Restricted Subsidiaries to) incur, incurcreate, assume or suffer permit to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations (i) Indebtedness created hereunder and under the other Loan Documents, (ii)(A) Indebtedness of a Loan Party under the Spinco Credit Agreement in an aggregate principal amount, when taken together with the aggregate principal amount of any Permitted Refinancings thereof outstanding, not to exceed the sum of (w) $1,841,450,000 plus (x) the aggregate principal amount of any “Incremental Term Commitments” (as defined in the Spinco Credit Agreement) established after the Closing Date under and in [[3666665]] accordance with Section 2.23 of the Spinco Credit Agreement as in effect on the Closing Date (or any comparable successor provision in the case of a refinancing or other replacement thereof so long as such provision does not permit a greater amount of Indebtedness to be incurred and such provision is otherwise not disadvantageous to the Lenders in any material respect as compared to the predecessor provision included in the Spinco Credit Agreement (any such provision, a “Comparable Successor Provision”)) plus (y) the “Incremental Facility Amount” (as defined in the Spinco Credit Agreement as in effect on the Closing Date (or any Comparable Successor Provision)) at such time (for the avoidance of doubt, without duplication of clause (x) above) plus (z) the amount of all accrued and unpaid interest and premiums on, and commissions, fees and expenses incurred in connection with, any Permitted Refinancing thereof (including, for the avoidance of doubt, any Permitted Refinancing of Indebtedness subject to a previous Permitted Refinancing), and (B) any Permitted Refinancing of any Indebtedness described in the foregoing clause (ii)(A) so long as, if secured, the terms and provisions thereof shall be subject to the Leidos/Spinco Intercreditor Agreement and (iii) Indebtedness of the Loan Parties under the Loan Documentsevidenced by Refinancing Notes or Refinancing Junior Loans, and any Permitted Refinancing in respect thereof;
(b) Surviving intercompany Indebtedness listed on Schedule 7.03(bof Holdings and the Restricted Subsidiaries to the extent permitted by Section 6.08(d); provided that (x) other than during a Lien Suspension Period, but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness owed to a Loan Party shall be evidenced by a promissory note (including a global intercompany note), pledged and delivered to the Agent as additional security for the same are in effect on the date Obligations of this Agreement such Loan Party, together with an appropriate allonge or note power and (iiy) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are owed by a Loan Party to a Restricted Subsidiary that is not less favorable a Loan Party shall be subordinated in right of payment to the obligor thereon or Obligations of the Loan Party pursuant to an affiliate subordination agreement reasonably satisfactory to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromAgent;
(c) Indebtedness with respect of Holdings or any of the Restricted Subsidiaries incurred to Capital Leases finance the acquisition, lease, construction or improvement of any fixed or capital assets, and purchase money extensions, renewals, repair, improvement and replacements of any such assets or other Investments permitted hereunder; provided that (i) such Indebtedness in an amount not is incurred prior to exceed $1,000,000 in or within two hundred seventy (270) days after such acquisition or the completion of such construction or improvement and (ii) the aggregate principal amount at any time outstanding of Indebtedness permitted by this Section 6.09(c), when combined with the aggregate principal amount of all Capital Lease Obligations incurred pursuant to Section 6.09(d), shall not exceed the greater of $60,000,000 and 0.6% of Total Assets (determined at the time of incurrence of such Indebtedness (calculated on a pro forma basis) as of the last day of the most recently ended Test Period on or prior to the date of determination) at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) Capital Lease Obligations of Holdings or any of the SBA PPP LoanRestricted Subsidiaries in an aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Indebtedness incurred pursuant to Section 6.09(c), not exceeding the greater of (i) $60,000,000 and (ii) 0.6% of Total Assets, and any Permitted Refinancing thereof;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including obligations in respect of workers compensation claims, health, disability or other employee benefits benefits, unemployment insurance and other social security laws or regulations or property, casualty or liability insurance or 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 incurred by Holdings or other any Restricted Subsidiary, in each case in the Ordinary Course of Business;
(f) Indebtedness with in respect of Designated Additional Letter of Credit Facilities in an aggregate amount outstanding at any time not to reimbursement-type obligations regarding workers compensation claimsexceed $200,000,000 (and for purposes of this clause (f), the Borrower shall be deemed to have incurred an amount of Indebtedness under each letter of credit issued [[3666665]] under any Designated Additional Letter of Credit Facility equal to the Stated Amount (applied mutatis mutandis) of such letter of credit);
(g) Indebtedness incurred of any Person that becomes a Restricted Subsidiary after the Closing Date or Indebtedness acquired or assumed by Holdings or any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing Restricted Subsidiaries in connection with any Permitted Acquisition or other acquisition permitted under Section 6.08; provided that (i) such Indebtedness exists at the time such Person becomes a Restricted Subsidiary or such asset is acquired and is not created in contemplation of moneyor in connection with such Person becoming a Restricted Subsidiary or such asset being acquired, (ii) incurred immediately before and after such Person becomes a Restricted Subsidiary, no Default or Event of Default shall have occurred and be continuing or would result therefrom and (iii) at the time such Indebtedness is acquired or assumed or such Person becomes a Restricted Subsidiary, Holdings and the Restricted Subsidiaries shall be in compliance with the ordinary course Financial Covenant set forth in Section 6.15 after giving pro forma effect to the acquisition or assumption of business such Indebtedness and the pro forma adjustments described in accordance with customary terms Section 1.07 and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPany Permitted Refinancing thereof;
(h) unsecured Indebtedness consisting of guarantees resulting from endorsement Holdings and the Restricted Subsidiaries in an unlimited aggregate amount, so long as after giving pro forma effect to the incurrence of negotiable instruments such Indebtedness (and the use of proceeds therefrom) and the pro forma adjustments described in Section 1.07, the Leverage Ratio is equal to or less than 5.00 to 1.00; provided that (A) the terms of such Indebtedness are not, when taken as a whole, materially more favorable to the lenders providing such Indebtedness than those applicable to the Facilities or are otherwise on current market terms for collection such type of Indebtedness, (B) the final maturity date of such Indebtedness shall be no earlier than 91 days after the Latest Maturity Date of any of the Facilities outstanding at the time of incurrence of such Indebtedness, (C) the aggregate amount of principal payments required to be made on such Indebtedness prior to the date that is 91 days after the Latest Maturity Date of any of the Facilities outstanding at the time of incurrence of such Indebtedness shall not exceed 10% of the original principal amount of such Indebtedness, (D) on a pro forma basis after giving effect to the incurrence of such Indebtedness (and the use of proceeds therefrom), no Default or Event of Default shall have occurred and be continuing or would result therefrom and (E) the aggregate amount of all such Indebtedness incurred by any Restricted Subsidiaries that are not Loan Party in Parties pursuant to this clause (h), when combined with the ordinary course aggregate principal amount of businessIndebtedness incurred by (i) Restricted Subsidiaries that are not Loan Parties pursuant to Section 6.09(z) and (ii) Foreign Subsidiaries pursuant to Section 6.09(n), shall not exceed the greater of (1) $100,000,000 and (2) 1.0% of Total Assets (determined at the time of incurrence of such Indebtedness (calculated on a pro forma basis) as of the last day of the most recently ended Test Period on or prior to the date of determination);
(i) Indebtedness outstanding as of the Closing Date (other than Indebtedness created under the Spinco Loan Documents), as set forth on Schedule 6.09(i) and any Permitted Refinancing thereof;
(j) guarantees by Holdings and the Restricted Subsidiaries in respect of Indebtedness otherwise permitted hereunder (if directly incurred by such Person) of Holdings and the Restricted Subsidiaries; provided that in the case of any guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.08 (other than Section 6.08(c));
(k) [reserved];
(l) Indebtedness consisting of obligations of Holdings or any of the Restricted Subsidiaries under purchase price adjustments and other deferred consideration (e.g., earn-outs, indemnifications, incentive non-competes and other contingent obligations) or other similar arrangements [[3666665]] incurred by such Person in connection with the Spinco Acquisition, any Permitted Acquisition or other Investment permitted under Section 6.08 or any Dispositions permitted under Section 6.12;
(m) [reserved];
(n) Indebtedness of Foreign Subsidiaries in an aggregate amount outstanding, when combined with the aggregate principal amount of Indebtedness incurred by (i) Restricted Subsidiaries that are not Loan Parties pursuant to Section 6.09(h) and (ii) Restricted Subsidiaries that are not Loan Parties pursuant to Section 6.09(z), shall not exceed the greater of (1) $100,000,000 and (2) 1.0% of Total Assets (determined at the time of incurrence of such Indebtedness (calculated on a pro forma basis) as of the last day of the most recently ended Test Period on or prior to the date of determination);
(o) other than during a Lien Suspension Period, Indebtedness in respect of (i) one or more series of notes issued by the Borrower that are either (x) senior or subordinated and unsecured or (y) secured by Liens on the Collateral ranking junior to or pari passu with the Liens securing the Obligations, in each case issued in a public offering, Rule 144A or other private placement in lieu of the foregoing (and any Loan Party owing to any other Loan Party Registered Equivalent Notes issued in exchange therefor), and (ii) Indebtedness owed loans made to the Borrower that are either (x) senior or subordinated and unsecured or (y) secured by Liens on Collateral ranking junior to the Liens securing the Obligations (any such Indebtedness, “Incremental Equivalent Debt”); provided that (A) the aggregate principal amount of all Incremental Equivalent Debt shall not exceed the amount then permitted to be incurred under the Incremental Facility Amount (it being understood and agreed that, solely for purposes of determining the Senior Secured Leverage Ratio under the Incremental Facility Amount, (x) any Incremental Equivalent Debt incurred or proposed to be incurred under the Incremental Facility Amount that is unsecured or secured by Liens on Collateral ranking junior to the Liens securing the Obligations shall nevertheless be deemed to be senior secured debt and included in Total Senior Secured Debt and (y) any Incremental Equivalent Debt consisting of revolving commitments shall be deemed to be fully drawn on the effective date thereof and the Agent shall have received a certificate demonstrating compliance with the Incremental Facility Amount dated the date of incurrence and executed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02Financial Officer of Holding); provided, thatfurther, that in each the case (A) all of Incremental Equivalent Debt that is secured, such Indebtedness shall be evidenced by promissory notes and all such notes Incremental Equivalent Debt shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is Market Intercreditor Agreement reasonably satisfactory to the Collateral Agent, (B) (x) the final maturity of any Incremental Equivalent Debt consisting of revolving credit commitments shall be no earlier than the Latest Maturity Date of any Revolving Credit Commitments in effect at the time of incurrence and (y) the final maturity of any other Incremental Equivalent Debt shall be no earlier than the Latest Maturity Date of any Term Loan in effect at the time of the incurrence, issuance or obtainment of such Indebtedness, (C) the terms of any Incremental Equivalent Debt (other than revolving credit commitments) shall have a Weighted Average Life to Maturity that is no shorter than the then longest remaining Weighted Average Life to Maturity of the then outstanding Term Loans at the time of incurrence; provided that this clause (C) shall not apply to any bridge facility on customary terms if the long-term indebtedness that such bridge facility is to be converted into satisfies the maturity and amortization restrictions in this paragraph, (D) the terms of such Incremental Equivalent Debt that constitutes notes shall not be subject to any amortization prior to the final maturity thereof, or be subject to any mandatory redemption or prepayment provisions or rights (except customary assets sale or change of control provisions) and (E) such Incremental Equivalent Debt shall have pricing (including interest, fees and premiums), optional prepayment and optional redemption terms as may be agreed to by the Borrower and the lenders party thereto, (F) such Incremental Equivalent Debt may not have (x) obligors or contingent obligors that were not obligors or contingent obligors under the Facilities or (y) security in any case more extensive than that of the Facilities (including, for the avoidance of doubt, that such Incremental Equivalent Debt may not have security on any assets that do not constitute Collateral), (G) the other terms and conditions including such financial maintenance covenants (if any) applicable to such Incremental Equivalent Debt shall not be, when taken as a whole, materially more favorable (as determined [[3666665]] in good faith by the board of directors of Holdings), to the holders of such Indebtedness than those applicable under this Agreement (except for covenants or other provisions (i) applicable only to periods after the Latest Maturity Date or (ii) that are also for the benefit of all other Lenders in respect of Loans and Commitments outstanding at the time such Incremental Equivalent Debt is incurred); provided that a certificate of a Responsible Officer of the Borrower delivered to the Agent at least five (5) Business Days prior to the incurrence of such Incremental Equivalent Debt, together with a reasonably detailed description of material terms and conditions of such Incremental Equivalent Debt or drafts of the documentation related thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement in this clause (H) shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Agent notifies the Borrower within such five (5) Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees), and (I) no Default or Event of Default shall have occurred and be continuing or would exist after giving effect to the issuance of such Incremental Equivalent Debt;
(jp) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant the extent constituting Indebtedness, contingent obligations arising under indemnity agreements to any bona fide warranty or contractual service obligations or performance title insurance companies to cause such title insurers to issue title insurance policies in the ordinary course Ordinary Course of business Business with respect to the real property of the Loan PartiesHoldings or any Restricted Subsidiary;
(kq) to the extent constituting Indebtedness, (i) unfunded pension fund and other employee benefit plan obligations and liabilities to the extent they are permitted to remain unfunded under applicable law and (ii) to the extent constituting Indebtedness, deferred compensation or similar arrangements payable to future, present or former directors, officers, employees, members of management or consultants of Holdings and the Restricted Subsidiaries;
(r) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligationsrepurchase agreements constituting Cash Equivalents;
(ls) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes consisting of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party promissory notes issued by Holdings or any Affiliate Restricted Subsidiary to future, present or employee former directors, officers, members of management, employees or consultants of Holdings or any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.of
Appears in 1 contract
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist exist, directly or indirectly, any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except
(a) Obligations of Indebtedness incurred under this Agreement and the Loan Parties under the other Loan Documents;
(b) Surviving (i) Indebtedness outstanding on the Closing Date and listed on Schedule 7.03(b6.01(b), but (ii) refinancings or renewals thereof; provided that (A) any such refinancing Indebtedness is in an aggregate principal amount not greater than the aggregate principal amount of the Indebtedness being renewed or refinanced, plus the amount of any extensionspremiums required to be paid thereon and reasonable fees and expenses associated therewith, renewals (B) such refinancing Indebtedness has a later or replacements equal final maturity and longer or equal weighted average life than the Indebtedness being renewed or refinanced and (C) the covenants, events of default, subordination and other provisions thereof (including any guarantees thereof) shall be, in the aggregate, no less favorable to the Lenders than those contained in the Indebtedness being renewed or refinanced, and (iii) Indebtedness under the Second Lien Notes issued on the Closing Date and any related guarantees (including any notes and guarantees issued in exchange therefor in accordance with the registration rights document entered into in connection with the issuance of such Second Lien Notes and any related guarantees) and any refinancing or renewal of such Second Lien Notes (together with any notes and guarantees issued in exchange for such refinancing or renewed Indebtedness except (i) renewals and extensions expressly in accordance with any registration rights agreement entered into in connection therewith); provided for in the agreements evidencing that any such Indebtedness refinancing or renewal of such Second Lien Notes shall (A) be used solely to refinance (including the payment of premium, accrued and unpaid interest and fees and expenses in connection therewith) and replace such Second Lien Notes in full, (B) be in an aggregate principal amount not to exceed $180 million, (C) be subject to the terms of the Intercreditor Agreement and (D) contain terms and conditions no worse for the Secured Parties or the Loan Parties than those of such Second Lien Notes as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromClosing Date;
(c) Indebtedness under Hedging Obligations with respect to Capital Leases and purchase money Indebtedness interest rates, foreign currency exchange rates or commodity prices, in an amount each case not to exceed $1,000,000 in the aggregate at any time outstandingentered into for speculative purposes; provided that any if such Hedging Obligations relate to interest rates, (i) such Hedging Obligations relate to payment obligations on Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall otherwise permitted to be secured incurred by the asset subject to such additional Capital Leases or acquired asset in connection with Loan Documents and (ii) the incurrence notional principal amount of such Indebtedness, as Hedging Obligations at the case may be, and (y) in time incurred does not exceed the case of purchase money Indebtedness, shall constitute not less than 75% principal amount of the aggregate consideration paid with respect Indebtedness to which such assetHedging Obligations relate;
(d) the SBA PPP LoanIndebtedness permitted by Section 6.04(f);
(e) Indebtedness in respect of Swap Contracts designed Purchase Money Obligations and Capital Lease Obligations, and refinancings or renewals thereof, in an aggregate amount not to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposesexceed $10.0 million at any time outstanding;
(f) Indebtedness incurred by Foreign Subsidiaries in an aggregate amount not to exceed $5.0 million at any Loan Party time outstanding;
(g) Indebtedness in respect of letters bid, performance or surety bonds, workers’ compensation claims, self-insurance obligations and bankers acceptances issued for the account of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created any Company in the ordinary course of business, including guarantees or obligations of any Company with respect to letters of credit supporting such bid, performance or surety bonds, workers’ compensation claims, self-insurance obligations and bankers acceptances (in each case other than for an obligation for money borrowed);
(h) Contingent Obligations of any Loan Party in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsotherwise permitted under this Section 6.01;
(gi) Attributable Indebtedness resulting from Sale and Leaseback Transactions incurred by any Loan Party in respect an aggregate amount not to exceed $5.0 million at any time outstanding, and refinancing or renewals thereof;
(j) Indebtedness arising from the honoring by a bank or other financial institution of accounts payable to trade creditors for goods and services and current operating liabilities a check, draft or similar instrument inadvertently (not except in the result case of the borrowing of moneydaylight overdrafts) incurred drawn against insufficient funds in the ordinary course of business in accordance with customary terms and paid business; provided, however, that such Indebtedness is extinguished within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPfive Business Days of incurrence;
(hk) Indebtedness consisting of guarantees resulting from arising in connection with endorsement of negotiable instruments for collection by any Loan Party deposit in the ordinary course of business;
(l) [Intentionally Omitted];
(i) Indebtedness consisting of additional Second Lien Notes and any related guarantees after the Closing Date; provided, that (iA) the Consolidated Net Leverage Ratio (as defined in the Second Lien Indenture as in effect on the date hereof) as of the date of incurrence of such Indebtedness after giving pro forma effect thereto is equal to or less than 4.00 to 1.00, (B) such additional Second Lien Notes and the Liens securing such additional Second Lien Notes shall be subject to the Intercreditor Agreement and (C) the entire net proceeds of such Indebtedness are used to Retire Parent Debt (including the payment of premium, accrued and unpaid interest and fees and expenses in connection therewith) in accordance with the provisions hereof, together with any Loan Party owing to notes and guarantees issued in exchange for such additional Second Lien Notes in accordance with any other Loan Party registration rights agreement entered into in connection therewith; and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to refinancings or renewals thereof (together with any Loan Party to the extent notes and guarantees issued in exchange for such Indebtedness is permitted as an Investment pursuant to Section 7.02in accordance with any registration rights agreement entered into in connection therewith); provided, that, in each case provided that any such refinancing or renewal of such additional Second Lien Notes shall (A) all be used solely to refinance and replace such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority additional Second Lien pursuant to the Collateral Documents and Notes in full, (B) all such Indebtedness shall be unsecured and subordinated in right of payment an aggregate principal amount not to exceed the principal amount (plus the payment of premium, accrued and unpaid interest and fees and expenses in full connection therewith) of the Obligations pursuant Second Lien Notes being refinanced, (C) be subject to the terms of the applicable promissory notes Intercreditor Agreement and (D) contain terms and conditions no worse for the Secured Parties or an intercompany subordination agreement that the Loan Parties than those of such additional Second Lien Notes as in any effect on the date of incurrence of such case, is reasonably satisfactory to the Collateral Agentadditional Second Lien Notes;
(ji) Indebtedness consisting of new unsecured notes or any other new unsecured Indebtedness; provided, that (A) the Consolidated Net Leverage Ratio (as defined in the Second Lien Indenture as in effect on the date hereof) as of the date of incurrence of such Indebtedness after giving pro forma effect thereto is equal to or less than 5.00 to 1.00, and (B) the entire net proceeds of such Indebtedness are used to Retire Parent Debt (including the payment of premium, accrued and unpaid interest and fees and expenses in connection therewith) in accordance with the provisions hereof, together with any notes and guarantees issued in exchange therefor in accordance with any registration rights agreement entered into in connection therewith; and (ii) refinancings or renewals thereof; provided that any such refinancing or renewal of such additional unsecured Notes or other unsecured Indebtedness shall (other than A) replace such additional unsecured Indebtedness in full and (B) contain terms and conditions no worse for borrowed money) that may be deemed to exist pursuant to any bona fide warranty the Secured Parties or contractual service obligations or performance in the ordinary course of business of the Loan PartiesParties than those of such additional unsecured Indebtedness as in effect on the date of incurrence of such additional unsecured Indebtedness;
(ko) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity DateLoan Party under any Treasury Services Agreement; and
(mp) the 2021 Preferred Stock on terms reasonably acceptable other Indebtedness of any Company in an aggregate amount not to the Administrative Agent in its sole discretion. For purposes exceed $25.0 million at any time outstanding; provided that except for up to $5.0 million of determining compliance with Attributable Indebtedness resulting from Sale and Leaseback Transactions, all Indebtedness incurred and outstanding under this Section 7.03, all Obligations outstanding under the Loan Documents will 6.01(p) shall be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentunsecured.
Appears in 1 contract
Indebtedness. CreateEach of the Loan Parties shall not, and shall not permit any of its Unregulated Subsidiaries to, at any time create, incur, assume or suffer to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(ai) Obligations of the Loan Parties Indebtedness under the Loan Documents;
(bii) Surviving Existing Indebtedness listed as set forth on Schedule 7.03(b)8.2.1 including any amendments, but not any extensions, renewals or replacements refinancings thereof, so long as at the time of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, Borrower is in compliance with Section 8.2.12 [Maximum Leverage Ratio] and (y) in the case no Event of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such assetDefault would be caused thereby;
(diii) the SBA PPP LoanIndebtedness of a Loan Party to another Loan Party;
(eiv) Indebtedness in respect of Swap Contracts designed capitalized leases (including, without limitation, capitalized leases for metered assets) not to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred exceed at any time outstanding in the ordinary course of business aggregate for the Loan Parties and not for speculative purposestheir Unregulated Subsidiaries $60,000,000;
(fv) Indebtedness incurred by of NJR Energy Services Company arising under any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsHedging Transaction;
(gvi) Indebtedness incurred Indebtedness, at any time outstanding not to exceed $10,000,000, secured by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith Liens permitted by appropriate proceedings and reserved for substantially in accordance with GAAPSection 8.2.2(i);
(hvii) Indebtedness consisting Indebtedness, secured by Purchase Money Security Interests as permitted by clause (xi) of guarantees resulting from endorsement the definition of negotiable instruments for collection by Permitted Liens, not to exceed at any Loan Party time outstanding in the ordinary course of businessaggregate for the Loan Parties and their Unregulated Subsidiaries $20,000,000;
(iviii) Indebtedness not to exceed at any time outstanding in the aggregate for the Loan Parties and their Unregulated Subsidiaries $75,000,000, so long as such Indebtedness: (a) is Indebtedness of (i) any Loan Party owing an Acquired Person which existed prior to any other the consummation of the Permitted Acquisition in connection with which such Acquired Person was acquired by a Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness was not incurred in contemplation of or in connection with such Permitted Acquisition; and (b) if secured, is secured by Liens permitted by clause (xii) of the definition of Permitted Liens;
(ix) The NJR Notes, including any amendments, extensions, renewals or refinancings thereof, so long as an Investment pursuant to at the time of the incurrence of such Indebtedness, the Borrower is in compliance with Section 7.02; provided, that8.2.12 [Maximum Leverage Ratio] and no Event of Default would be caused thereby;
(x) Additional NJR Notes, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to including any amendments, extensions, renewals or refinancings thereof, so long as at the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full time of the Obligations pursuant to incurrence of such Indebtedness, the terms Borrower is in compliance with Section 8.2.12 [Maximum Leverage Ratio] and no Event of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral AgentDefault would be caused thereby;
(jxi) unsecured Non-recourse Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan PartiesProject Subsidiaries;
(kxii) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity DateGuaranties permitted by Section 8.2.3 [Guaranties]; and
(mxiii) Additional Indebtedness of the 2021 Preferred Stock on terms reasonably acceptable to Loan Parties incurred after the Administrative Agent Closing Date, in its sole discretion. For purposes each case including any amendments, extensions, renewals or refinancings thereof, so long as at the time of determining the incurrence of such Indebtedness, the Borrower is in compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will 8.2.12 [Maximum Leverage Ratio] both before and after such incurrence and no Event of Default may be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentcaused thereby.
Appears in 1 contract
Indebtedness. CreateBorrowers shall not, and shall not permit any of their Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist guaranty, or otherwise become or remain directly or indirectly liable with respect to, any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of the Loan Parties under the Loan Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals Borrowers and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement their Subsidiaries may become and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor remain liable with respect to the Obligations;
(ii) Borrowers and their Subsidiaries may become and remain liable with respect to Contingent Obligations permitted by subsection 7.4 and (other than with respect to clauses (iv) and (v) of subsection 7.4) upon any matured obligations actually arising pursuant thereto, the Indebtedness being extended, renewed or refinanced, corresponding to the Contingent Obligations so extinguished;
(Biii) exceed Borrowers may become and remain liable for Indebtedness represented by the Mortgage Notes in a an aggregate principal amount not to exceed at any time $425,000,000, reduced by any principal payments required to be made thereon;
(iv) [Intentionally omitted];
(v) Borrowers may become and remain liable for Indebtedness represented by the Subordinated Notes in an aggregate principal amount not to exceed at any time $97,500,000 reduced by any principal payments required to be made thereon;
(vi) Borrowers may become and remain liable for Indebtedness under the FF&E Facility Agreement in an aggregate principal amount not to exceed at any time $97,700,000 (plus any accrued and unpaid interest thereon added to principal) reduced by any principal payments required to be made thereon;
(vii) [Intentionally omitted];
(viii) Borrowers may become and remain liable for Non-Recourse Financing used to finance the purchase or lease of personal or real property for use in the business of a Borrower or one of its Subsidiaries provided that (x) such Non-Recourse Financing represents at least 75% of the purchase price of such personal or real property (y) the Indebtedness being renewed, extended or refinanced, or incurred pursuant to this clause (Cviii) shall not exceed $20,000,000 at any time; and (z) no such Indebtedness may be incurred, created or assumed if any Default or Event of Default incurred under this clause (viii) until the Completion Date has occurred and is continuing or would result therefromBorrowers have generated Consolidated EBITDA for one Fiscal Quarter of at least $25,000,000;
(cix) Indebtedness with respect to Capital Leases Borrowers may become and purchase money remain liable for Indebtedness in respect of any Completion Guaranty Loan in an aggregate amount not to exceed $1,000,000 in the aggregate at 25,000,000 (plus any time outstanding; provided that any such Indebtedness accrued and unpaid interest thereon added to principal);
(x) Borrowers and their Subsidiaries may become and remain liable for additional Indebtedness to the extent permitted under and on the terms described in the case Intercreditor Agreement;
(xi) Borrowers may become and remain liable for Indebtedness to employees of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset Borrowers ("Employee Repurchase Notes") incurred in connection with the incurrence any repurchase of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates employee options or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, healthstock upon death, disability or other termination of such employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within employment agreements or option plans or agreements as in effect on the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
Closing Date (h"Permitted Employee Repurchases") Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary provided that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment on terms not less favorable to Borrowers and the payment in full of the Obligations pursuant to Lenders than the terms of the applicable promissory notes or an intercompany subordination agreement Subordinated Notes and shall expressly provide that in any such case, is reasonably satisfactory payments thereon shall be required only to the Collateral Agentextent not restricted by any Financing Agreement;
(jxii) unsecured Borrowers may become and remain liable for Indebtedness (other than incurred for borrowed money) that may the purpose of financing all or any part of the purchase or lease of gaming equipment to be deemed used in connection with the casino located at the casino resort to exist pursuant be owned by Phase II Subsidiary or any casino to any bona fide warranty or contractual service obligations or performance be operated within Phase II in the ordinary course of business aggregate amount at any time outstanding not to exceed $10,000,000; provided, that upon default under such Indebtedness, the lender under such Indebtedness may seek recourse or payment against the Borrowers and their Subsidiaries only through the return or sale of the Loan Partiesproperty or equipment so purchased or leased and may not otherwise assert a valid claim for payment on such Indebtedness against the Borrowers and their Subsidiaries or any other property of the Borrowers and their Subsidiaries.
(xiii) Borrowers may become and remain liable with respect to other Indebtedness in an aggregate principal amount not to exceed $10,000,000 at any time outstanding;
(kxiv) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date[Intentionally omitted]; and
(mxv) Borrowers may incur Indebtedness in an aggregate principal amount not to exceed $15,000,000 (plus any accrued and unpaid interest thereon added to principal) at any time outstanding ("Additional Indebtedness"), provided that (a) such Additional Indebtedness shall not be secured by, directly or indirectly, any Liens on any property or assets owned directly or indirectly by Venetian or LVSI or any Subsidiary of Venetian or LVSI or by any stock, securities, membership interest, partnership interest or other direct or indirect equity interests in Venetian or LVSI or any Subsidiary of Venetian or LVSI; (b) such Additional Indebtedness shall be subordinated to all Obligations under this Agreement and all Indebtedness under the 2021 Preferred Stock Mortgage Notes Indenture, the Subordinated Notes Indenture and the FF&E Facility (collectively, the "Superior Facilities") on terms reasonably acceptable to the Administrative Agent and the Arrangers and no payments in its sole discretion. For purposes respect thereof may be made or demanded prior to the payment in full of determining compliance with this Section 7.03, all Obligations outstanding (and further the principal of such Additional Indebtedness may not be paid back until all Obligations and all Indebtedness with respect to the Superior Facilities has been paid in full and this covenant of Borrowers shall survive the earlier termination of this Credit Agreement), other than payment of interest in kind provided that any instruments or documents evidencing such payments contain the same terms and conditions as the Additional Indebtedness (provided that such subordination shall not prohibit the exchange of any note evidencing any such Additional Indebtedness or of the payment of any amounts under any such note in whole or in part for securities of any Borrower) provided that no Restricted Junior Payment may be made in respect of such securities; (c) prior to incurring any Additional Indebtedness all documents and instruments evidencing such Indebtedness shall be delivered to Administrative Agent and Arrangers and such documents and instruments shall (x) incorporate the terms set forth in the other clauses of this proviso and otherwise be in form and substance reasonably satisfactory to Administrative Agent and Arrangers (y) provide that the Lenders shall be third party beneficiaries of such documents and instruments and (z) contain provisions prohibiting any amendment, modification or waiver thereof binding on Borrowers or their Subsidiaries without the prior written consent of Administrative Agent and Arrangers (which consent shall not be unreasonably withheld); and (d) the Additional Indebtedness shall be permitted under the Loan Documents will be deemed other Superior Facilities and all other agreements to have been incurred in reliance only on which the exception in clause (a) of this Section 7.03. Notwithstanding anything Borrowers are a party, and prior to the contrary herein, no Loan Party incurrence thereof counsel to the Borrowers shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated delivered an opinion to the Loans Lenders to that effect (with respect to the Superior Facilities only) in form and other Obligations in a manner and on terms substance reasonably satisfactory (including reasonably satisfactory assumptions) to the Administrative AgentAgent and Arrangers on behalf of the Lenders.
Appears in 1 contract
Indebtedness. CreateThe Borrower will not, and will not permit ------------ any of its Subsidiaries to, create, incur, assume or suffer to exist or otherwise become or be liable in respect of any Indebtedness, except other than, without duplication, the following, without duplication (which constitutes “Permitted Indebtedness”)::
(a) Obligations Indebtedness in respect of the Loan Parties under the Loan DocumentsCredit Extensions and other Obligations;
(b) Surviving until the Closing Date, Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such identified in Item 7.2.1(b) ("Indebtedness except (ito be Paid") renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromDisclosure Schedule;
(c) Indebtedness of the Borrower and its Subsidiaries existing as of the Effective Date which is identified in Item 7.2.1(c) ("Ongoing ------------- Indebtedness") of the Disclosure Schedule; provided that such Ongoing Indebtedness may not be replaced except to the extent repaid or extended by (i) Loans made hereunder at the stated maturity of such Ongoing Indebtedness or (ii) loans which have a Weighted Life to Maturity at least as long as the lesser of (x) such Ongoing Indebtedness and (y) the Commitment Termination Date and which are on a pari passu unsecured basis ---- ----- with Indebtedness of the Borrower in respect of the Credit Extensions;
(d) term loans that are Subordinated Debt; provided that the subordination provisions in the agreements governing such loans (x) are approved by the Required Lenders or (y) conform to Capital Leases and purchase money the subordination provisions attached hereto as Exhibit O; ---------
(e) Indebtedness (other than accounts payable to suppliers to the extent permitted by clause (g) of Section 7.2.1) (i) in an aggregate ---------- ------------- principal amount not to exceed $1,000,000 in the aggregate 5,000,000 at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured outstanding which is incurred by the asset subject Borrower or any of its Subsidiaries (other than Spiegel Acceptance Corporation) to such additional Capital Leases or acquired asset in connection with the incurrence a vendor of any assets to finance its acquisition of such Indebtedness, as the case may beassets, and (yii) in respect of Capitalized Lease Liabilities to the case extent permitted by Section 7.2.6; and -------------
(f) Normal limited recourse indebtedness for breaches of purchase money Indebtedness, shall constitute not less than 75% representations and warranties or for reductions or cancellations of the aggregate consideration paid with receivables in respect to such assetof Excluded Receivables;
(dg) the SBA PPP Loan;
(e) unsecured Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP;
(h) Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by any Loan Party in the ordinary course of business;
(i) Indebtedness of (i) any Loan Party owing salaries to any other Loan Party employees and (ii) open accounts extended by suppliers on customary trade terms in connection with purchases of goods and services, but excluding Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to incurred through the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; borrowing of money or Contingent Liabilities), provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.however,
Appears in 1 contract
Indebtedness. CreateEach Borrower shall not, and shall cause its Subsidiaries to not, directly or indirectly, create, incur, assume or suffer guaranty or otherwise become or remain directly or indirectly liable with respect to exist any IndebtednessIndebtedness (including with respect to or under any Hedge Agreement), except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations of the Loan Parties under the Loan DocumentsObligations;
(b) Surviving [Reserved];
(c) Indebtedness listed of the Borrowers existing on the Closing Date described in Schedule 7.03(b6.1(c) (“Existing Indebtedness”), but not any extensions, renewals or replacements of such Indebtedness except as otherwise approved by the Board of Directors of HIT;
(id) renewals and Indebtedness of the Subsidiary Owners existing on the Closing Date, including the Subsidiary Loan Agreements (the “Subsidiary Owner Indebtedness”), but not any extensions expressly provided for in (other than the agreements evidencing any such Indebtedness exercise of extension options existing under Subsidiary Loan Agreements as the same are in effect on the date hereof), renewals or refinancings of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured except as otherwise approved by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence Board of such Indebtedness, as the case may be, and (y) in the case Directors of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP LoanHIT;
(e) Indebtedness related to the matters described in respect Sections 6.5(b), 6.5(c) and 6.5(d) as and to the extent so characterized;
(f) Hedge Agreements entered into prior to the date hereof (or in connection with any extension of Swap Contracts designed to hedge against interest ratesany Subsidiary Loan Agreement or in connection with any replacement of the London Interbank Offered Rate with a replacement or fallback rate, foreign exchange rates or commodities pricing risks in each case as expressly contemplated by the Subsidiary Loan Documents as in effect as of the date hereof);
(g) trade payables not represented by a note, customarily paid by Borrower within ninety (90) days of incurrence and in fact not more than ninety (90) days outstanding, that are incurred in the ordinary course of Borrower’s business, in amounts reasonable and customary for such business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect exceeding 4.0% of letters the outstanding principal amount of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created the Loans in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPaggregate;
(h) Indebtedness consisting of guarantees resulting from endorsement the financing of negotiable instruments for collection by any Loan Party insurance premiums incurred in the ordinary course of business;
(i) Indebtedness of (i) the Subsidiary Owners in respect of any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to customary cash management, cash pooling or netting or setting off arrangements in the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right ordinary course of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agentbusiness;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed of the Subsidiary Owners with respect to exist pursuant to any bona fide warranty or contractual service obligations or performance bonds, surety bonds, appeal bonds, customs bonds, worker’s compensation claims and similar obligations, required in the ordinary course of business or in connection with the enforcement of rights or claims of such party or in connection with judgments that do not result in a Default or an Event of Default (including guarantees or obligations of the Loan PartiesSubsidiary Owners with respect to letters of credit supporting such performance, appeal, customs or surety bonds or workers’ compensation claims);
(k) Indebtedness in respect of the convertible notes; provided thatSubsidiary Owners existing on the Closing Date representing deferred payment of franchise fees, all such Indebtedness in respect of amendment fees and/or consent fees payable under the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the ObligationsMaterial Property Agreements;
(l) other unsecured Indebtednessthe incurrence by any Subsidiary Owner of Indebtedness arising from agreements providing for indemnification, provided that adjustment of purchase price or similar obligations, incurred in connection with the disposition of any assets, so long as the principal amount does not exceed the Net Asset Sale Proceeds actually received by such Indebtedness matures not less than one hundred eighty (180) days following Subsidiary Owner in connection with such disposition, solely to the Last Out Maturity Dateextent such disposition is permitted hereunder; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to incurrence by Borrower or its Subsidiaries of Indebtedness arising from the Administrative Agent in its sole discretion. For purposes honoring by a bank or other financial institution of determining compliance with this Section 7.03a check, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary hereindraft or similar instrument inadvertently drawn against insufficient funds, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless so long as such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.covered within five (5)
Appears in 1 contract
Sources: Credit Agreement (Hospitality Investors Trust, Inc.)
Indebtedness. CreateThe Borrowers will not, and will not permit any of their respective Subsidiaries to, create, incur, assume or suffer permit to exist any Indebtedness, except the following, without duplication (which constitutes “Permitted Indebtedness”):except:
(a) Obligations Indebtedness created hereunder or under any of the Loan Parties under the Loan Documents, including renewals, extensions and refinancings hereof or thereof;
(b) Surviving Indebtedness listed existing on the date hereof and set forth in Schedule 7.03(b), but not any extensions, 6.01 including all renewals or replacements and extensions thereof so long as the amount of such Indebtedness except (i) renewals is not increased in connection therewith and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same renewals or extension are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof that are not significantly less favorable to the obligor thereon or to the Lenders applicable Obligor than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefromoriginal Indebtedness;
(c) Indebtedness with respect of a Borrower to Capital Leases any Subsidiary and purchase money Indebtedness in an amount not of any Subsidiary to exceed $1,000,000 in the aggregate at a Borrower or any time outstanding; other Subsidiary, provided that each Borrower hereby acknowledges and agrees for itself and on behalf of its respective Subsidiaries that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, owed by an Obligor to a Subsidiary that is not an Obligor shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in hereby is made, expressly subordinate to the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such assetObligations;
(d) the SBA PPP LoanIndebtedness of a Borrower or any of its Subsidiaries under any Swap Agreement entered into by such Borrower or such Subsidiary in compliance with Section 6.06;
(e) Guarantees by a Borrower of Indebtedness of any Subsidiary and by any Obligor of Indebtedness of any of other Obligor to the extent such Indebtedness is otherwise permitted hereunder;
(f) Capital Lease Obligations that, in respect the aggregate do not exceed at any time outstanding $33,000,000;
(g) the Existing Letters of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred Credit (as shown on Schedule 1.01A) and additional letters of credit and/or bank guarantees issued in the ordinary course of business and not by a financial institution other than a the Issuing Lender or any Lender if the Domestic Borrower has reasonably determined that neither the Issuing Bank nor any other Lender is able to issue such letter of credit or bank guaranty up to a maximum total for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of all such letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course credit of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAP$15,000,000;
(h) Indebtedness consisting of guarantees resulting from endorsement any Person that becomes a Subsidiary after the Effective Date; provided that (i) such Indebtedness exists at the time such Person becomes a Subsidiary and is not created in contemplation of negotiable instruments for collection or in connection with such Person becoming a Subsidiary, (ii) none of the properties of the Borrowers or any of their respective other Subsidiaries is bound with respect to such Indebtedness, and (iii) the aggregate principal amount of Indebtedness permitted by this clause (h) shall not exceed $33,000,000;
(i) Indebtedness of a Borrower or any Loan Party of its Subsidiaries secured by Liens permitted by clause (u) of the definition of “Permitted Liens” up to but not exceeding at any one time outstanding $33,000,000;
(j) Indebtedness of the Domestic Borrower to BGP arising out of any agreement of reimbursement, indemnity or similar arrangement given in connection with the guaranty of BGP to the Lenders referenced in Section 4.01(r) hereof, up to the maximum principal amount of BGP’s liability to the Lenders under said guaranty;
(k) Subordinated Indebtedness;
(l) Indebtedness arising on account of deferred charges, deferred workers compensation liabilities, or deferred employee medical liabilities;
(m) any financed insurance premiums;
(n) indemnities and surety obligations in the ordinary course of business;
(io) other unsecured Indebtedness of a Borrower or any of its Subsidiaries in an aggregate principal amount not exceeding at any time outstanding (i) any Loan Party owing to any other Loan Party and (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agent;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan Parties;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Date$33,000,000; and
(mp) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding Indebtedness under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative AgentION/ICON Guaranty.
Appears in 1 contract
Indebtedness. Create, incur, assume or suffer to exist The Borrowers do not and shall not hereafter have any Indebtedness, except Indebtedness with the following, without duplication (which constitutes “Permitted Indebtedness”):exceptions of:
(a) Obligations of Indebtedness to the Loan Parties Administrative Agent and the Lenders under this Agreement and the other Loan Documents;
(b) Surviving Indebtedness listed on Schedule 7.03(b)existing as of the Closing Date of any wholly-owned Subsidiary to a Borrower or any other wholly-owned Subsidiary and of a Borrower to any wholly-owned Subsidiary; provided, but not any extensionshowever, renewals or replacements of such Indebtedness except that (i) renewals and extensions all moneys due from a Borrower to any Subsidiary which is not a Borrower will be expressly provided for in the agreements evidencing any such Indebtedness constituted as the same are in effect on the date of this Agreement a Subordinated Debt and (ii) refinancings and extensions of no Borrower shall repay any such Indebtedness if the terms and conditions thereof are not less favorable moneys due to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Subsidiary at any time unless no Event of Default has occurred exists and is continuing no event which, with the giving of notice or lapse of time or both, would result therefromconstitute an Event of Default exists or will exist after such repayment;
(c) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at Current liabilities of a Borrower or any time outstanding; provided that any such Indebtedness Subsidiary (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less other than 75% of the aggregate consideration paid with respect to such asset;
(d) the SBA PPP Loan;
(e) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness incurred by any Loan Party in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(g) Indebtedness incurred by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of borrowed money) incurred in the ordinary course of its business and in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for substantially in accordance with GAAPtrade practices;
(hd) Existing Indebtedness consisting of guarantees resulting from endorsement of negotiable instruments for collection by a Borrower or any Loan Party Subsidiary referred to in the ordinary course of business;
EXHIBIT 7-7 attached hereto, and renewals and extensions thereof, provided that (i) the aggregate principal amount of such Indebtedness of (i) is not at any Loan Party owing to any other Loan Party and time increased, (ii) Indebtedness owed by a Subsidiary that is not a Guarantor Subsidiary no material terms applicable to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant more favorable to the Collateral Documents renewal or extension lenders than the terms that are applicable to the holders of such Indebtedness on the date hereof and (Biii) all the interest rate applicable to such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full a market interest rate as of the Obligations pursuant to the terms time of the applicable promissory notes such renewal or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral Agentextension;
(je) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to of a Borrower or any bona fide warranty or contractual service obligations or performance in the ordinary course of business of the Loan PartiesSubsidiary secured by Permitted Liens;
(kf) Indebtedness of a Borrower or any Subsidiary in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment guarantees to the payment in full (other than any payment as a result of extent the conversion of such convertible notes into Equity Interests of Parent) to the Obligations;
(l) other unsecured Indebtedness, provided that such underlying Indebtedness matures not less than one hundred eighty (180) days following the Last Out Maturity Dateis permitted by this Section 7-7; and
(m) the 2021 Preferred Stock on terms reasonably acceptable to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agent.
Appears in 1 contract
Indebtedness. CreateThe Company will not permit any Subsidiary of the Company to create, incur, assume or suffer to exist or otherwise become or be liable in respect of any Indebtedness, except the following, Indebtedness other than (without duplication (which constitutes “Permitted Indebtedness”duplication):
(a) Obligations Indebtedness in respect of the Loan Parties under the Loan DocumentsLoans and other Obligations or refinancings thereof;
(b) Surviving Indebtedness listed on Schedule 7.03(b), but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or extended, and the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended; provided, such Indebtedness permitted outstanding under the immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced, or (C) be incurred, created or assumed if any Default or Event of Default has occurred and is continuing or would result therefrom$500,000,000 Credit Agreement;
(c) Indebtedness in respect of taxes, assessments or governmental charges to the extent that payment thereof shall not at the time be required to be made in accordance with the pro visions of SECTION 6.1.4 or which is being contested in good faith, by diligent proceedings, for which adequate reserves in accordance with GAAP shall have been set aside and with respect to Capital Leases and purchase money Indebtedness in an amount not to exceed $1,000,000 in the aggregate at any time outstanding; provided that any such Indebtedness (x) in the case of additional Capital Leases or purchase money Indebtedness, shall be secured by the asset subject to such additional Capital Leases or acquired asset in connection with the incurrence of such Indebtedness, as the case may be, and (y) in the case of purchase money Indebtedness, shall constitute not less than 75% of the aggregate consideration paid with respect to such assetwhich no Lien has attached;
(d) the SBA PPP LoanIndebtedness in respect of judgments or awards not constituting an Event of Default under SECTION 7.1.8;
(e) Indebtedness in respect for Borrowed Money secured by Liens permitted by SECTION 6.2.3(b), PROVIDED that the aggregate outstanding principal amount of Swap Contracts designed Indebtedness incurred pursuant to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposesthis CLAUSE (e) shall at no time exceed $50,000,000;
(f) refinancings, renewals, replacements or extensions of Indebtedness incurred permitted by any Loan Party CLAUSE (b) or (e) above or by CLAUSE (g),(h) OR (l) below, in respect an amount not greater than the amount required to repay the Indebtedness so refinanced, and otherwise conforming to the terms of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimssuch clauses;
(g) Indebtedness incurred secured by any Loan Party in respect of accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the ordinary course of business in accordance with customary terms and paid within the specified time, unless contested in good faith Liens permitted by appropriate proceedings and reserved for substantially in accordance with GAAPSECTION 6.2.3(l);
(h) Indebtedness consisting of guarantees resulting from endorsement Subsidiaries acquired after the date hereof existing at the time of negotiable instruments for collection by such acquisition or attaching to assets purchased as part of the purchase of all or substantially all the assets of a Person or any Loan Party distinct business segment of a Person and not created in the ordinary course anticipation of businesssuch acquisition, so long as after giving effect to such Indebtedness no Default shall exist hereunder;
(i) Indebtedness Contingent Liabilities in respect of (i) any Loan Party owing to obligation of the Company or any other Loan Party and (ii) Indebtedness owed by a Obligor or any Subsidiary that is not a Guarantor Subsidiary to any Loan Party to the extent such Indebtedness is permitted as an Investment pursuant to Section 7.02; provided, that, in each case (A) all such Indebtedness shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to the Collateral Documents and (B) all such Indebtedness shall be unsecured and subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case, is reasonably satisfactory to the Collateral AgentObligors permitted by this Agreement;
(j) unsecured Indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any bona fide warranty or contractual service obligations or performance in the ordinary course respect of business of the Loan Partiesinterest rate risk management agreements;
(k) Indebtedness in respect of the convertible notes; provided that, all such Indebtedness in respect of the convertible notes shall be unsecured and subordinated in right of payment to the payment in full (Company or any other than any payment as a result of the conversion of such convertible notes into Equity Interests of Parent) to the ObligationsSubsidiary;
(l) Existing Indebtedness listed on ITEM 6.2.2(l) ("Existing Indebtedness") of the Disclosure Schedule;
(m) Capitalized Leases of the Obligors that together with all Indebtedness outstanding under CLAUSE (o) hereof and all Capitalized Lease Liabilities outstanding (other unsecured Indebtednessthan Capitalized Leases under CLAUSES (h) AND (l) hereof) do not exceed $75,000,000 in the aggregate outstanding at any one time, provided that so long as after giving effect to such Capitalized Leases no Default shall exist hereunder;
(n) Indebtedness matures not less than one hundred eighty (180represented by notes or letters of credit issued in connection with insurance policies and in a form substantially similar to the notes or letters of credit set forth in ITEM 6.2.2(n) days following of the Last Out Maturity DateDisclosure Schedule issued in connection with existing insurance policies of any Subsidiary; and
(o) Other Indebtedness that together with all Capitalized Lease Liabilities outstanding under CLAUSE (m) hereof does not exceed $75,000,000 in the 2021 Preferred Stock on terms reasonably acceptable aggregate outstanding at any one time, so long as after giving effect to the Administrative Agent in its sole discretion. For purposes of determining compliance with this Section 7.03, all Obligations outstanding under the Loan Documents will be deemed to have been incurred in reliance only on the exception in clause (a) of this Section 7.03. Notwithstanding anything to the contrary herein, no Loan Party shall have outstanding, create or incur any Indebtedness owing to any other Loan Party or any Affiliate or employee of any Loan Party unless such Indebtedness is expressly permitted hereunder and expressly subordinated to the Loans and other Obligations in a manner and on terms satisfactory to the Administrative Agentno Default shall exist hereunder.
Appears in 1 contract