Restrictions on Indebtedness. The Credit Parties will not create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than: (i) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge Provider; (ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness; (iii) current liabilities of the Credit Parties incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services; (iv) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8; (v) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default; (vi) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (vii) Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity in the ordinary course of business in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith; and (viii) Other Indebtedness of the REIT Guarantor and the Borrower (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1).
Appears in 3 contracts
Sources: Credit Agreement (Plymouth Industrial REIT, Inc.), Credit Agreement (Plymouth Industrial REIT, Inc.), Credit Agreement (Plymouth Industrial REIT, Inc.)
Restrictions on Indebtedness. The Credit Parties None of the Borrowers will, and will not permit any of its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iii) current liabilities of the Credit Parties incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(iv) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(v) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(vib) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viic) Indebtedness in respect of any Derivative Contracts in the ordinary course of business;
(d) Existing Senior Debt, and refundings, replacements or refinancings thereof; provided that no such refunding or refinancing shall shorten the maturity or weighted average life to maturity or increase the principal amount of any of the Existing Senior Debt;
(e) Indebtedness of BGI’s domestic Subsidiaries that are Guarantors not to exceed $10,000,000, including such Indebtedness outstanding on the Closing Date;
(f) Indebtedness of BGI’s foreign Subsidiaries not to exceed in the aggregate for all such foreign Subsidiaries $100,000,000, including such Indebtedness outstanding on the Closing Date but excluding Indebtedness under the Loan Documents; provided that the Borrowers are in current compliance with and, after giving effect to the proposed incurrence of Indebtedness, will continue to be in compliance with all of the covenants in §§9 and 10 hereof as if the transaction occurred on the first day of the period of measurement;
(g) Indebtedness of the Borrowers or any Subsidiary that is a Guarantor that constitutes a Synthetic Lease or Capitalized Lease or otherwise incurred to finance the acquisition of fixed or capital assets (other than pursuant to Sale Leaseback Transactions referred to in §9.1(n), whether pursuant to a loan, financing lease or otherwise) in an aggregate principal amount not to exceed $30,000,000 at any time outstanding;
(h) Indebtedness of the Borrowers or any Subsidiary that is a Guarantor in respect of Subordinated Debt;
(i) Indebtedness of the Borrowers owing to any Subsidiary of such Borrower that is a Guarantor which is expressly subordinated to the prior payment in full in cash of all Obligations on terms disclosed to and reasonably acceptable to the Administrative Agent prior to the incurrence thereof;
(j) Indebtedness of a Person outstanding at the time it is first acquired by any of the Borrowers in an acquisition permitted pursuant to §9.5.1(g), provided that any such Indebtedness was not created at the time of or in contemplation or in anticipation of such acquisition;
(k) Indebtedness of any of the Borrowers or any of their Subsidiaries which are Guarantors incurred in connection with the issuance of any surety bonds, Performance Letters of Credit or other similar performance bonds required pursuant to any contractual Obligation or requirement of law to which any of the Borrowers or any of their Subsidiaries which are Guarantors are subject in an aggregate principal amount not to exceed $15,000,000 at any time outstanding;
(l) additional Indebtedness of the Borrowers not exceeding $35,000,000 less any Indebtedness incurred under paragraph (g), in aggregate principal amount at any one time outstanding;
(m) Indebtedness of Subsidiaries of the Borrowers which are Guarantors owing to any other landownersSubsidiaries of the Borrowers which are Guarantors or to the Borrowers which results from an Investment permitted under §9.3(g) or (i);
(n) Indebtedness of BGI and its domestic Subsidiaries which are Guarantors incurred in connection with Sale Leaseback Transactions, government in an aggregate principal amount not to exceed $25,000,000 at any time outstanding;
(o) Indebtedness of BGI and its domestic Subsidiaries which are Guarantors incurred in connection with accounts receivable securitizations on customary terms or quasi-government or entity or similar entity supply chain financing in the ordinary course of business which is nonrecourse to the Borrowers in an aggregate amount not to exceed $75,000,000; provided that the Borrowers are in current compliance with and, after giving effect to the proposed incurrence of Indebtedness, will continue to be in compliance with all of the covenants in §§9 and 10 hereof as if the transaction occurred on the first day of the period of measurement;
(p) unsecured Indebtedness of BGI and its domestic Subsidiaries that are Guarantors in respect of earnout payments incurred in connection with any acquisition permitted under §9.5; provided that the construction or development Borrowers are in current compliance with and, after giving effect to the proposed incurrence of any Real EstateIndebtedness, will continue to be in compliance with all of the covenants in §§9 and 10 hereof as if the transaction occurred on the first day of the period of measurement; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, subdivision improvement agreementsconvertible notes, development agreementsin each case, reimbursement agreementson terms no more restrictive than this Credit Agreement, infrastructure development agreementsand, agreements in respect of convertible notes, with a maturity date later than the Maturity Date; provided that the Borrowers are in current compliance with and, after giving effect to construct or pay for on-site or off-site improvements the proposed incurrence of Indebtedness, will continue to be in compliance with all of the covenants in §§9 and similar agreements incurred in 10 hereof as if the ordinary course transaction occurred on the first day of business in connection with the development period of Real Estate or construction measurement. Notwithstanding the foregoing, the aggregate amount of infrastructure in connection therewith; and
(viiii) Other Indebtedness of the REIT Guarantor and Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrower Borrowers’ Subsidiaries (but not any other Credit Partyunder paragraphs (e), including (f), (j), (l) or (o)) shall not exceed fifteen percent (15%) of Consolidated Total Assets of the Borrowers, determined as of the end of the then most recently completed fiscal year of the Borrowers. For the avoidance of doubt, the parties acknowledge and agree that if Indebtedness permitted in connection with customary recourse carve-outs and environmental indemnifications related any subsection of this Section 9.1 is permitted to Indebtedness be incurred by Subsidiaries (other than BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary Guarantor) in respect of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing , the BGI Guaranty shall not preclude Subsidiaries increase the amount of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1)deemed incurred under such subsection.
Appears in 3 contracts
Sources: Credit Agreement (Barnes Group Inc), Senior Unsecured Revolving Credit Agreement (Barnes Group Inc), Senior Unsecured Revolving Credit Agreement (Barnes Group Inc)
Restrictions on Indebtedness. The Credit Parties Borrower will not, and will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(iib) Unsecured Indebtedness provided that to the Credit Parties remain Lender Hedge Providers in compliance with the covenants set forth in §9 after incurring such Indebtednessrespect of any Hedge Obligations;
(iiic) current liabilities of the Credit Parties Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivd) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(ve) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(vif) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;; and
(viig) subject to the provisions of §9, Indebtedness incurred to any other landowners, government of the Borrower or quasi-government or entity or similar entity CVOP II in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes;
(h) subject to the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt (excluding the Obligations and the Hedge Obligations) shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time; provided, however, that for one period of four (4) full consecutive fiscal quarters immediately following the date on which the Merger is consummated and one (1) partial fiscal quarter period to include the quarter in connection which the Merger is consummated, if applicable, the amount of Secured Debt (excluding the Obligations and the Hedge Obligations) that is Recourse Indebtedness may exceed fifteen percent (15.0%) but shall not exceed seventeen and one-half percent (17.5%) during such period;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the construction Indebtedness described in clause (a) above, provided that such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct interest therein or pay for on-site any direct or off-site improvements and similar agreements incurred indirect ownership interest in the ordinary course Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of business in connection with the development of Real Estate or construction of infrastructure in connection therewithcredit support for such Unsecured Debt; and
(viiik) Other unsecured Indebtedness of Subsidiaries of Borrower, CVOP II or, from and after the REIT Merger, CVOP I to Borrower, CVOP II or, from and after the Merger, CVOP I, respectively; provided that any such Indebtedness of a Subsidiary of Borrower, CVOP II or, from and after the Merger, CVOP I that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that the Indebtedness described in §8.1(j) may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that (A) (1) Borrower, (2) CVOP II and from and after the Merger, NewCo, as guarantors only, (3) from and after the Merger, CVOP I, and (4) any Subsidiary of the Borrower (but not any other Credit Party)or from and after the Merger, including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries of CVOP I (other than any such Subsidiary of Borrower, CVOP I or CVOP II that is a Subsidiary Guarantor or any Person having any direct or indirect ownership interest in any such Subsidiary Guarantor) of the REIT Guarantor), provided the REIT Guarantor and the Borrower may create, incur, assume, guarantee or be or remain in compliance liable, contingently or otherwise, with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring respect to any Indebtedness which would be prohibited is permitted by §8.1(h) or (i) and with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, subject to the terms of this Agreement, and (B) the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1)8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of the Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement.
Appears in 3 contracts
Sources: Credit Agreement (Carter Validus Mission Critical REIT II, Inc.), Term Loan Agreement (Carter Validus Mission Critical REIT II, Inc.), Credit Agreement (Carter Validus Mission Critical REIT II, Inc.)
Restrictions on Indebtedness. The Credit Parties Borrower will not, and will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(iib) Unsecured Indebtedness provided that to the Credit Parties remain Lender Hedge Providers in compliance with the covenants set forth in §9 after incurring such Indebtednessrespect of any Hedge Obligations;
(iiic) current liabilities of the Credit Parties Borrower, the Guarantor or their respective Subsidiaries incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivd) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(ve) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(vif) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;; and
(viig) subject to the provisions of §9, Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity of REIT and Borrower in respect of Derivatives Contracts that are entered into in the ordinary course of business in connection with and not for speculative purposes;
(h) subject to the construction or development provisions of any Real Estate§9, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for onNon-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Recourse Indebtedness that is secured by Real Estate (other than the Mortgaged Properties or construction interest therein) and related assets;
(i) subject to the provisions of infrastructure in connection therewith§9, Secured Debt or Unsecured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Indebtedness shall not exceed twenty percent (20%) of Gross Asset Value; and
(viiij) Other unsecured Indebtedness of Subsidiaries of Borrower to Borrower; provided that any such Indebtedness of a Subsidiary of Borrower that is a Guarantor shall be subordinate to the REIT repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Mortgaged Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor and as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, (ii) none of the Borrower (but not Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary Guarantoror Unconsolidated Affiliate of such Person; and (z) no Subsidiary of the REIT GuarantorBorrower which directly or indirectly owns a Mortgaged Property shall create, provided the REIT Guarantor and the Borrower incur, assume, guarantee or be or remain in compliance liable, contingently, with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (respect to any Indebtedness other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by to the terms of this §8.1)Lenders arising under the Loan Documents.
Appears in 3 contracts
Sources: Credit Agreement (Carter Validus Mission Critical REIT, Inc.), Credit Agreement (Carter Validus Mission Critical REIT, Inc.), Credit Agreement (Carter Validus Mission Critical REIT, Inc.)
Restrictions on Indebtedness. The Credit Parties Borrower will not, and will not permit any of its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iii) current liabilities of the Credit Parties incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivb) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.88.8;
(vc) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the period Borrower or such Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(vid) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viie) Subordinated Debt;
(f) Indebtedness (in addition to similar Indebtedness permitted under clause (g) hereof) incurred in connection with the acquisition or lease after the date hereof of any real or personal property by the Borrower or such Subsidiary or under any Capitalized Leases, provided that (i) the aggregate principal amount of such Indebtedness of the Borrower and its Subsidiaries (exclusive of the aggregate principal amount of Nonrecourse Loans) shall not exceed $25,000,000 outstanding at any one time and (ii) the principal amount of such Indebtedness secured by or relating to the lease of any particular property shall not exceed 100% of the purchase price of such property;
(g) Indebtedness existing on the date hereof and listed and described on Schedule 9.1 hereto; and
(h) any renewal or refinancing of any Indebtedness permitted under this §9.1; provided that any such refinancing or renewal does not (i) increase the aggregate amount of such Indebtedness, (ii) increase the interest rate or fees applicable to, or shorten the weighted average life to maturity of, such Indebtedness, (iii) change, alter or modify the terms of such Indebtedness in any manner which violates either §9.8 hereof or the Subordination and Intercreditor Agreement or (iv) add to the collateral, if any, securing such Indebtedness;
(i) Indebtedness of the Borrower and its Subsidiaries consisting of short-term trade credit extended to the Borrower or such Subsidiary in the ordinary course of such Person’s business in connection with the acquisition of Containers and other landownersequipment; provided that such Indebtedness shall not be in existence for more than 180 days after the occurrence of the transaction giving rise thereto;
(j) Indebtedness in respect of Interest Rate Protection Agreements;
(k) Indebtedness of a Subsidiary of the Borrower to the Borrower consisting of Investments permitted by §9.3(e);
(l) Indebtedness consisting of obligations (contingent or otherwise) of the Borrower or any Subsidiary existing or arising under any Swap Contract entered into with any Lender or the Administrative Agent, government provided that (i) such obligations are (or quasi-government or entity or similar entity 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 purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party; and
(m) Indebtedness owing to Interpool in an aggregate amount not to exceed $40,000,000 incurred in connection with the construction or development purchase by the Borrower of any Real Estateits common stock from Interpool under the Redemption Agreement and representing the “cash” portion of such purchase price, includingprovided, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements that no such Indebtedness shall remain outstanding following the earlier of (i) fourteen (14) days after the Closing Date and similar agreements incurred in (ii) the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith; and
(viii) Other Indebtedness Drawdown Date of the REIT Guarantor and the Borrower (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1)Term Loan.
Appears in 3 contracts
Sources: Revolving Credit and Term Loan Agreement (CAI International, Inc.), Revolving Credit and Term Loan Agreement (CAI International, Inc.), Revolving Credit and Term Loan Agreement (CAI International, Inc.)
Restrictions on Indebtedness. (a) The Credit Parties will Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or be otherwise become directly or remain indirectly liable, contingently or otherwise, with respect to (collectively, "incur") any Indebtedness (including Acquired Debt); provided, however, that the Company or any Guarantor may incur Indebtedness (including Acquired Debt), and any Restricted Subsidiary of the Company (other than:than a Bankrupt Subsidiary) may incur Acquired Debt not incurred by the acquired Person in contemplation of the related acquisition of such Person by such Restricted Subsidiary, if the Company's Consolidated Coverage Ratio at the time of incurrence of such Indebtedness, after giving pro forma effect to such incurrence or issuance as of such date and to the use of proceeds therefrom, as if the same had occurred at the beginning of the most recently ended four fiscal quarter period of the Company (commencing on or after the Issue Date) for which internal financial statements are available, would have been no less than 2.00 to 1.00.
(b) Section 4.09(a) will not prohibit the incurrence of any of the following items of Indebtedness (collectively, "Permitted Debt"):
(1) the incurrence by the Company or any Restricted Subsidiary of Indebtedness and letters of credit under the Credit Agreements in an aggregate principal amount at any one time outstanding (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) not to exceed $280.0 million, less the aggregate amount of all Net Proceeds of Asset Sales applied to repay Indebtedness under the Credit Agreements in order to comply with Section 4.10(b);
(2) the incurrence by the Company of Indebtedness consisting solely of its obligations under Insurance Premium Financing Arrangements, which obligations shall not exceed at any time $30.0 million in the aggregate;
(3) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness, including without limitation the Unsecured Notes;
(4) the incurrence by the Company and the Guarantors of Indebtedness represented by the Notes and the related Subsidiary Guarantees to be issued on the Issue Date;
(5) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in a Permitted Business in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (5), not to exceed $15.0 million at any time outstanding;
(6) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance, defease or replace, Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under Section 4.09(a) or any of clauses (3), (4), (5), (6), (9), (15), (16) or (18) of this paragraph;
(7) the incurrence (i) by the Company or any of the Guarantors of intercompany Indebtedness between or among the Company and any of the Guarantors and (ii) by non-Guarantor Restricted Subsidiaries of the Company of Indebtedness to the Lenders arising under Company or a Guarantor in an aggregate net amount not to exceed $20.0 million; provided, however, that (a) if the Company or any Guarantor is the obligor on such Indebtedness, such Indebtedness must be unsecured and expressly subordinated to the prior payment in full in cash of all obligations with respect to the Notes (in the case of the Loan Documents Company) or the related Subsidiary Guarantee (in the case of a Guarantor); and Hedge Obligations (b) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Guarantor and any sale or other transfer of any such Indebtedness to a Lender Hedge ProviderPerson that is not either the Company or a Guarantor will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Guarantor, as the case may be, that was not permitted by this clause (7);
(ii8) the incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations that are incurred for the bona fide purpose of hedging (w) Unsecured interest rate risk with respect to Indebtedness provided that of the Credit Parties remain Company or any of its Restricted Subsidiaries permitted to be incurred under this Indenture and which has a notional amount no greater than the payments due with respect to the Indebtedness being hedged thereby, or (x) currency exchange rate risk in compliance connection with then existing financial obligations, or (y) the covenants set forth acquisition of goods or services or (z) against fluctuations in §9 after incurring such Indebtednesselectricity rates pertaining to electricity produced by a Project; and in no event for purposes of speculation;
(iii9) current liabilities Guarantees provided under Section 4.17 and the Guarantees by the Company or any Restricted Subsidiary of Indebtedness of the Credit Parties Company or a Restricted Subsidiary that was permitted to be incurred by another provision of this Section 4.09;
(A) Indebtedness incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(iv) Indebtedness business solely in respect of taxesbid, assessmentssurety and similar bonds and standby letters of credit issued for the purpose of supporting workers' compensation liabilities or other insurance obligations of the Company or any of its Restricted Subsidiaries, governmental charges or levies and claims for labor, materials and supplies to the extent that such incurrence does not result in the incurrence of any obligation for the payment therefor shall not at the time be required of borrowed money to be made in accordance with the provisions of §7.8;
others and (vB) Indebtedness owed to, including obligations in respect of judgments only letters of credit for the benefit of, any Person in connection with workers' compensation, health, disability or other employee benefits or property, casualty or liability insurance provided by such Person to the extentCompany or a Restricted Subsidiary of the Company, for the period and for an amount not resulting in an Event of Default;
(vi) endorsements for collection, deposit pursuant to reimbursement or negotiation and warranties of products or servicesindemnification obligations to such Person, in each case incurred in the ordinary course of business;
(vii11) obligations in respect of Performance Guarantees entered into in accordance with Section 4.20;
(12) obligations in respect of any Existing IPP International Project Guaranties;
(13) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness incurred to any arising from the honoring by a bank or other landownersfinancial institution of a check, government or quasi-government or entity draft or similar entity instrument inadvertently drawn against insufficient funds in the ordinary course of business, and such Indebtedness is extinguished within five business days after incurrence thereof;
(14) Indebtedness arising from agreements of the Company or any of its Restricted Subsidiaries providing for indemnification, adjustment of purchase price, earn-out or other similar obligations, in each case, incurred or assumed in connection with the construction or development disposition of any Real Estatebusiness or assets or a Subsidiary of the Company;
(15) Indebtedness of the Company or any of its Restricted Subsidiaries, includingto the extent the net proceeds thereof are promptly (a) used to purchase Notes tendered pursuant to a Change of Control Offer under Section 4.15 or (b) deposited to defease the Notes in accordance with Article 8;
(16) the incurrence by the Company or any of its Restricted Subsidiaries of Non-Recourse Debt or Limited Recourse Debt, without limitationin an aggregate amount not to exceed the greater of (i) $40.0 million and (ii) 33% of the aggregate reduction in principal amount of Non-Recourse Debt and Limited Recourse Debt in existence on the Issue Date, subdivision improvement agreementsup to a maximum amount of $150.0 million, development agreementsat any time outstanding;
(17) the incurrence by any Restricted Subsidiary of the Company of Limited Recourse Debt relating to waste-to-energy Projects, reimbursement agreementsso long as the incurrence by such Restricted Subsidiary of such Limited Recourse Debt is required, infrastructure development agreementsas evidenced by a resolution of the Board of Directors, agreements by the existing client (if such client is a governmental authority) of the relevant Project; provided that during the continuance of an Event of Default, the Company and its Restricted Subsidiaries shall not enter into any new commitments for any such Indebtedness;
(18) Non-Recourse Debt or Limited Recourse Debt incurred by any of the Company's Restricted Subsidiaries, the net proceeds of which are used to construct repay, redeem or pay for on-site repurchase the Notes or off-site improvements and similar agreements incurred in any other secured unsubordinated Indebtedness of the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewithCompany; and
(viii19) Other the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (19), not to exceed $30.0 million at any time outstanding.
(c) For purposes of determining compliance with this Section 4.09, in the event that an item of proposed Indebtedness meets the criteria of more than one of the REIT Guarantor categories of Permitted Debt described in clause (1) through (19) of Section 4.09(b), or is permitted to be incurred pursuant to Section 4.09(a), the Company will be permitted to classify such item of Indebtedness on the date of its incurrence, or later reclassify all or a portion of such item of Indebtedness, in any manner that complies with this Section 4.09. The maximum amount of Indebtedness that the Company or any of its Restricted Subsidiaries may incur pursuant to this covenant shall not be deemed to be exceeded solely as a result of fluctuations in currency exchange rates. Indebtedness under the Credit Agreements, including Guarantees of such Indebtedness, on the Issue Date will be deemed to have been incurred on such date in reliance on the exception provided by clause (1) of Section 4.09(b).
(d) Accrual of interest or dividends, the accretion of accreted value or original issue discount and the Borrower payment of interest or dividends in the form of additional Indebtedness will not be deemed to be an incurrence of Indebtedness for purposes of this Section 4.09.
(but e) For purposes of determining compliance with any U.S. dollar-denominated restriction on Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency will be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term debt, or first committed, in the case of revolving credit debt; provided that (1) the U.S. dollar-equivalent principal amount of any such Indebtedness outstanding or committed on the Issue Date will be calculated based on the relevant currency exchange rate in effect on the Issue Date of this Indenture, and (2) if such Indebtedness is incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such Refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced. The principal amount of any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (to refinance other Indebtedness, if incurred in a different currency than any Subsidiary Guarantor) 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 the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1)refinancing.
Appears in 3 contracts
Sources: Indenture (Covanta Energy Corp), Indenture (Covanta Energy Corp), Indenture (Covanta Energy Corp)
Restrictions on Indebtedness. The Credit Parties Borrower will not, and will not permit any of the other Transaction Parties to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders Banks and the Agent arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iiib) current liabilities of the Credit Borrower or the other Transaction Parties incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but business not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8ss.8.8;
(vd) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the period Borrower or such other Transaction Party shall at the time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(vie) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viif) obligations under Capitalized Leases which, when combined with amounts outstanding under ss.9.1(g), do not exceed $50,000,000 in aggregate amount at any time outstanding;
(g) Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity in the ordinary course of business in connection with the construction or development acquisition after the date hereof of any Real Estatereal or personal property by the Borrower or such other Transaction Party, includingPROVIDED that the aggregate principal amount of such Indebtedness of the Borrower and the other Transaction Parties shall, without limitationwhen combined with amounts outstanding under ss.9.1(f) not exceed the aggregate amount of $50,000,000 at any one time;
(h) Indebtedness of the Borrower and the other Transaction Parties existing on the date hereof and listed and described on SCHEDULE 9.1 hereto;
(i) Indebtedness of (i) a Guarantor, subdivision improvement agreementsfollowing its execution and delivery of its Guaranty to the Agent, development agreementsto the Borrower; (ii) Hadco FSC to the Borrower in an aggregate amount not to exceed $2,000,000; (iii) Hadco Malaysia to the Borrower in an aggregate amount not to exceed $55,000,000, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements no more than $25,000,000 of which may be incurred in any one fiscal year of the ordinary course Borrower; PROVIDED, HOWEVER, that if during any fiscal year the amount of business such Indebtedness permitted for that fiscal year is not so utilized, such unutilized amount may be utilized in the next succeeding fiscal year; and (iv) New Zycon to the Borrower in an aggregate amount not to exceed $50,000;
(j) Indebtedness consisting of contingent obligations arising in connection with any Transaction Party's compliance with applicable Environmental Laws in an amount not to exceed in the development of Real Estate or construction of infrastructure in connection therewith; andaggregate $20,000,000;
(viiik) Other so long as no Default or Event of Default shall have occurred and be continuing or would occur as a result of the incurrence of any thereof, unsecured Indebtedness of the REIT Guarantor and Borrower or any of the Borrower Guarantors up to an aggregate amount (the "ADDITIONAL AMOUNT") equal to the amount of $175,000,000, consisting of: (i) up to an amount equal to $150,000,000 (but not any other Credit Partyto exceed, when combined with amounts of Indebtedness incurred pursuant to clause (ii) of this ss.9.1(k), including the Additional Amount) of Indebtedness which is expressly subordinated and made junior to the payment and performance in connection full of the Obligations; and (ii) up to $150,000,000 (but not to exceed, when combined with customary recourse carve-outs and environmental indemnifications related to amounts of Indebtedness incurred by Subsidiaries pursuant to clause (other than any Subsidiary Guarantori) of this ss.9.1(k), the REIT GuarantorAdditional Amount) of Indebtedness which may rank PARI PASSU with the Obligations; PROVIDED, provided HOWEVER, that the REIT Guarantor terms of Indebtedness permitted pursuant to this ss.9.1(k) shalL include the following:
(A) the maturity date of any such Indebtedness occurs at least one hundred twenty (120) days following the Revolving Credit Loan Maturity Date;
(B) with respect to subordinated Indebtedness described in clause (i) of this ss.9.1(k), no principal, interest, fees or other amounts with respect thereto are due and payable upon the occurrence and during the continuance of a Default or Event of Default;
(C) with respect to subordinated Indebtedness described in clause (i) of this ss.9.1(k), no principal or sinking fund payments are due prior to at least one hundred twenty (120) days following the Revolving Credit Loan Maturity Date;
(D) the rate of interest and other fees applicable to such Indebtedness are, in the reasonable judgment of the Agent and the Borrower remain Majority Banks, a market rate for companies with the same or a similar financial profile as the Borrower;
(E) the covenants, including affirmative, negative and financial covenants, included therein are, in compliance with the reasonable judgment of the Agent and the Majority Banks, less restrictive than the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries ss.ss.8, 9 and 10 hereof and do Not contain a negative pledge on assets of the REIT Guarantor Borrower and the other Transaction Parties (other than Borrower or a Subsidiary Guarantorbut may, with respect to PARI PASSU Indebtedness described in clause (ii) from incurring Indebtedness which would be prohibited of this ss.9.1(k), contain an "equal and ratable clause" with respect to any collateral obtained by the Agent and the Banks);
(F) the terms and conditions of which may not be amended without the prior written consent of the Agent and the Majority Banks;
(G) default provisions with respect to which do not cross-default to the Credit Agreement and the other Loan Documents, except that, with respect to PARI PASSU Indebtedness described in clause (ii) of this §8.1ss.9.1(k), such default provisions may cross-default to a Default or Event of Default under ss.13.1(a) or (b), to the extent that any such Default or Event of Default is not cured or waived within thirty (30) days after the occurrence thereof;
(H) subordinated Indebtedness described in clause (i) of this ss.
Appears in 3 contracts
Sources: Revolving Credit Agreement (Hadco Acquisition Corp Ii), Revolving Credit Agreement (Hadco Corp), Revolving Credit Agreement (Hadco Acquisition Corp Ii)
Restrictions on Indebtedness. The Credit Parties Borrower and the Guarantors will not, and will not permit their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iiib) current liabilities of the Credit Parties Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(vd) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an a Default or Event of Default;
(vie) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viif) subject to the provisions of §9, Non-Recourse Indebtedness incurred of the REIT, Borrower and their respective Subsidiaries (other than the Subsidiary Guarantors, the Borrowing Base Subsidiaries or any other Subsidiary of Borrower owning an interest in a Subsidiary Guarantor or a Borrowing Base Subsidiary); provided that REIT or the Borrower may provide a guaranty or indemnity with respect to Non-Recourse Exclusions in connection with such Non-Recourse Indebtedness; provided further that Colonial LP shall be allowed to remain liable, contingently or otherwise, on any guaranty or indemnity with respect to Non-Recourse Exclusions in connection with Non-Recourse Indebtedness existing as of the consummation of the Colonial Merger Transactions (the “CLP Guaranties”); and
(g) subject to the provisions of §9, Indebtedness (other than Non-Recourse Indebtedness) of the REIT, Borrower and their respective Subsidiaries. Notwithstanding anything in this Agreement to the contrary, (i) none of the Subsidiary Guarantors nor Borrowing Base Subsidiaries shall create, incur, assume, guarantee or be or remain liable contingently or otherwise, with respect to any other landownersIndebtedness described in §8.1(f) or any Indebtedness described in §8.1(g) that is Secured Indebtedness (exclusive, government or quasi-government or entity or similar entity in the ordinary course case of business Colonial LP, of the CLP Guaranties), (ii) a Subsidiary Guarantor shall only provide a guaranty of other Unsecured Indebtedness of the Borrower permitted pursuant to §8.1(g), and (iii) none of the Indebtedness described in §8.1(f) or §8.1(g) that is Secured Indebtedness shall have any of the Unencumbered Borrowing Base Properties or any interest therein or equipment related thereto or any direct or indirect ownership interest in any Subsidiary Guarantor or Borrowing Base Subsidiary as collateral, a borrowing base, asset pool or any similar form of credit support for such Indebtedness (provided that the foregoing shall not preclude REIT or the Borrower from incurring liability with respect to Non-Recourse Exclusions in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith; and
(viii) Other Indebtedness of the REIT Guarantor and the Borrower (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth described in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.18.1(f)).
Appears in 3 contracts
Sources: Term Loan Agreement (Mid-America Apartments, L.P.), Term Loan Agreement (Mid-America Apartments, L.P.), Credit Agreement (Mid America Apartment Communities Inc)
Restrictions on Indebtedness. The Credit Parties Borrower will not, and will not ---------------------------- permit any of its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders Banks and the Agent arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iiib) current liabilities of the Credit Parties Borrower and its Subsidiaries (other than ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Chiswick Trust and R&M Trust) incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but business not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8(S)6.8;
(vd) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the period Borrower shall at the time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(vie) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viif) obligations of the Borrower or any of its Subsidiaries (other than ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Chiswick Trust and R&M Trust) under Capitalized Leases not exceeding $5,000,000 in aggregate at any time outstanding;
(g) Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity in the ordinary course of business in connection with the construction or development acquisition after the date hereof of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct real or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith; and
(viii) Other Indebtedness of the REIT Guarantor and personal property by the Borrower (but not or any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by of its Subsidiaries (other than any Subsidiary Guarantor) Chiswick Trust and R&M Trust), provided that -------- the aggregate principal amount of such Indebtedness of the REIT GuarantorBorrower and its Subsidiaries (other than Chiswick Trust and R&M Trust) shall not exceed the aggregate amount of $5,000,000 at any one time;
(h) Indebtedness existing on the date of this Credit Agreement and listed and described on Schedule 7.1 hereto; -------- ---
(i) Indebtedness of (i) any and all Guarantors (other than ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, provided the REIT Guarantor Chiswick Trust and R&M Trust) to the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT or another Guarantor (other than ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Chiswick Trust and R&M Trust) and (ii) any other Subsidiary of the Borrower to the Borrower or a another Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by of the terms of this §8.1Borrower (other than ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Chiswick Trust and R&M Trust)., in an aggregate amount not to exceed $10,000,000 at any one time;
Appears in 2 contracts
Sources: Revolving Credit Agreement (New England Business Service Inc), Revolving Credit Agreement (New England Business Service Inc)
Restrictions on Indebtedness. The Credit Parties will not Company shall not, nor shall it permit any Subsidiary to, create, incur, assume, guarantee assume or be or remain liable, contingently or otherwise, with respect suffer to exist any Indebtedness other than:
(ia) Indebtedness to the Lenders arising under any of the Loan Documents Company and Hedge Obligations to its Subsidiaries under the Bank Credit Agreement and the 2016 NPA (either on an unsecured basis or on a Lender Hedge Providersecured basis if the Notes are equally and ratably secured pari passu therewith);
(iib) Unsecured Indebtedness provided existing on the date of the Assumption Agreement and set forth on Schedule 2 to the Assumption Agreement, including any renewals, extensions, refinancings and replacements thereof so long as the principal amount thereof (plus all accrued interest on such Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith, the amount of which may be included in the principal amount of any refinancing) is not increased;
(c) incurrence of guaranty, suretyship or indemnification obligations in connection with the performance by the Company or any of its Subsidiaries of services for their respective customers in the ordinary course of their businesses;
(d) so long as no Event of Default exists or would result therefrom (including that the Credit Parties remain in compliance with Company would not violate the covenants set forth in §9 after incurring such IndebtednessSections 10.13 and 10.14 as a result thereof), Indebtedness of one of the Company or any Subsidiary Guarantor or any one Subsidiary of the Company to the Company or another Subsidiary Guarantor or any other Subsidiary of the Company, which intercompany Indebtedness shall, in each case, be (x) unsecured, (y) subordinate to the obligations of the Company under this Agreement and the Notes in accordance with Section 24.11, and (z) in the case of any Permitted Intercompany Financing, subject to the requirements set forth in Section 10.4.3;
(iiie) current liabilities Indebtedness of the Credit Parties Company or any of its Subsidiaries incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases the acquisition or lease of goods and servicesany equipment or other property by the Company or any of its Subsidiaries under any Synthetic Lease, Capitalized Lease or other lease arrangement or purchase money financing;
(ivf) Indebtedness of the Company or any of its Subsidiaries with respect to bonds for vehicle permits, facility or building permits, tipping or disposal fees, solid waste collections, solid waste transportation, closure and post-closure obligations relating to any landfill owned or operated by the Company or any of its Subsidiaries;
(g) Indebtedness of the Company or any of its Subsidiaries in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
Swap Contracts (vincluding Fuel Derivatives Obligations) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(vi) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(vii) Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity entered into in the ordinary course of business and not for speculative purposes; Waste Connections, Inc. Note Purchase Agreement
(h) Indebtedness of the Company or any of its Subsidiaries with respect to letters of credit of Persons acquired by the Company or any of its Subsidiaries;
(i) Indebtedness of the Company or any of its Subsidiaries in connection respect of IRBs; provided, that (a) such Indebtedness may be secured only to the extent such IRBs are L/C Supported IRBs and (b) after taking into account all Indebtedness incurred pursuant to this clause (i), the Company and its Subsidiaries on a consolidated basis shall be in pro forma compliance with each of the construction financial covenants set forth in Sections 10.13 and 10.14 (using Consolidated EBITDA of the Consolidated Group as of the last day of the applicable Pro Forma Reference Period (but including any addbacks to Consolidated EBITDA permitted pursuant to the Bank Credit Agreement during the period following the last day of the applicable Pro Forma Reference Period) and Consolidated Total Funded Debt as of the date of, and after giving effect to, such Indebtedness (with such amounts adjusted as if such Indebtedness was incurred on the first day of the applicable Pro Forma Reference Period));
(j) other secured Indebtedness of the Company and its Subsidiaries (other than as permitted under other subsections hereof), not in excess of $20,000,000 (or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred its equivalent in the ordinary course relevant currency) in the aggregate at any time outstanding;
(k) other unsecured Indebtedness of business the Company and its Subsidiaries; provided, that, at the time of incurrence thereof, (a) the Company and its Subsidiaries shall be in connection compliance with each of the development financial covenants set forth in Sections 10.13 and 10.14 determined on a pro forma basis (using Consolidated EBITDA of Real Estate or construction the Consolidated Group as of infrastructure in connection therewiththe last day of the applicable Pro Forma Reference Period (but including any addbacks to Consolidated EBITDA permitted pursuant to the Bank Credit Agreement during the period following the last day of the applicable Pro Forma Reference Period) and Consolidated Total Funded Debt as of the date of, and after giving effect to, such Indebtedness) (including a pro forma application of the net proceeds thereof) as if such Indebtedness had been incurred on the first day of the applicable Pro Forma Reference Period, and (b) the aggregate principal amount of all Non-Obligor Subsidiary Indebtedness incurred pursuant to Section 10.1(j) and this Section 10.1(k) shall not at any time exceed 15% of Consolidated Net Worth;
(l) Indebtedness of the Company and its Subsidiaries under this Agreement and the Notes; and
(viiim) Other Indebtedness of the REIT Guarantor and the Borrower (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain a Receivables SPV in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1)Permitted Receivables Transaction.
Appears in 2 contracts
Sources: Assumption and Exchange Agreement (Waste Connections, Inc.), Assumption and Exchange Agreement (Waste Connections US, Inc.)
Restrictions on Indebtedness. The Credit Parties will not None of the Borrowers nor any of their Subsidiaries shall become or be a guarantor or surety of, or otherwise create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness, or become or be responsible in any manner (whether by agreement to purchase any obligations, stock, assets, goods or services, or to supply or advance any funds, assets, goods or services or otherwise) with respect to any undertaking or Indebtedness of any other Person, or incur any Indebtedness other than:
(ia) Indebtedness to the Lenders Lender arising under any of this Agreement or the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(iib) Unsecured Indebtedness provided that of the Credit Parties remain Borrowers in compliance with respect of judgments or awards which have been in force for less than the covenants set forth applicable period for taking an appeal so long as execution is not levied thereunder or in §9 after incurring respect of which any Borrower shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such Indebtednessappeal or review and in respect of which the Borrowers have maintained adequate reserves;
(iiic) current liabilities Indebtedness of the Credit Parties incurred any Borrower with respect to guaranty, suretyship or indemnification obligations in connection with such Borrower's performance of services for its respective customers in the ordinary course of its business, including but not limited such Indebtedness to short term unsecured financing arrangements be listed on SCHEDULE 7.1(C) hereto;
(d) Indebtedness of the Borrowers incurred with respect to landfill closure bonds, such bonds to be listed on SCHEDULE 7.1(D) hereto, not to exceed an aggregate amount of $500,000 in the aggregate 5,000,000 outstanding at any time, but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;.
(iv) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(v) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(vi) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(vii) Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity in the ordinary course of business in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith; and
(viiie) Other Indebtedness of the REIT Guarantor and the Borrower (but Borrowers not to exceed an aggregate amount of $5,000,000 at any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1).one time; and
Appears in 2 contracts
Sources: Revolving Credit Agreement (Geowaste Inc), Revolving Credit Agreement (Geowaste Inc)
Restrictions on Indebtedness. The Credit Parties Borrower will not createnot, nor will it permit any Subsidiary of Borrower to, issue, incur, assume, guarantee or be or remain liablecreate, become liable for, contingently or otherwise, or have outstanding any Indebtedness; provided, however, that the foregoing provisions shall not restrict nor operate to prevent the following Indebtedness, so long as the incurrence and maintenance of such Indebtedness would not cause the Borrower to be in violation of Section 7.17 hereof if compliance with such covenant were measured on the date of the incurrence of such Indebtedness:
(a) the Obligations;
(b) Non-Recourse Indebtedness of any Project Finance Subsidiary;
(c) so long as the Borrower would be in compliance with Section 7.17 hereof (calculated as of the date of, and after giving affect to, the incurrence of such Indebtedness), secured Indebtedness (excluding Indebtedness of the type described in (e), (f), and (g) below but including the pledge of stock or similar equity interest of any Project Finance Subsidiary or any Subsidiary which is an entity whose sole purpose and extent of business activities is to own the stock or similar equity interest of a Project Finance Subsidiary) (A) set forth on Schedule 7.15(b) hereto (and, with respect to any Indebtedness other than:
the “Black Hills Corporation lease payment obligation on the Wygen I facility” described thereon, extensions and refinancings of such facility which do not increase the principal amount thereof), (B) (i) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge Provider;
BHP, (ii) Unsecured Indebtedness provided that evidencing the Credit Parties remain in compliance with deferred purchase price of newly acquired property or incurred to finance the covenants set forth in §9 after incurring such Indebtedness;
(iii) current liabilities acquisition of personal property of the Credit Parties incurred in Borrower or a Subsidiary of the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(iv) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(v) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(vi) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(vii) Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity Borrower used in the ordinary course of business of the Borrower or Subsidiary, (iii) constituting Capitalized Lease Obligations or with respect to synthetic (or similar type) lease arrangements, or (iv) incurred in connection with the construction performance of tenders, statutory obligations, bids, leases or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay other similar obligations (other than for on-site or off-site improvements and similar agreements incurred borrowed money) entered into in the ordinary course of business or to secure obligations on performance bonds; provided, that the aggregate amount of Indebtedness permitted by this clause (B) at any time outstanding shall not exceed 5% of Consolidated Assets as reflected on the most recent balance sheet delivered by the Borrower pursuant to Section 7.6, provided that Borrower shall promptly provide the Administrative Agent with a copy of any documentation evidencing such Indebtedness in connection with excess of $25,000,000 and any modification to such Indebtedness, and (C) of CLF&P outstanding under the development of Real Estate or construction of infrastructure in connection therewith; andCLF&P Indenture;
(viiid) Other so long as the Borrower would be in compliance with Section 7.17 hereof (calculated as of the date of, and after giving affect to, the incurrence of such Indebtedness), other Indebtedness (excluding Indebtedness of the REIT Guarantor and the Borrower type described in (but not any other Credit Partye), including (f), and (g) below) which is unsecured and either junior in connection right of payment to the Obligations or pari passu to the Obligations or is equally and ratably secured with customary recourse carvethe Obligations, provided that Borrower shall promptly provide the Administrative Agent with a copy of any documentation evidencing such Indebtedness in excess of $25,000,000 and any modification to such Indebtedness;
(e) intercompany loans (i) from (x) Subsidiary to Borrower so long as such loans are subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent, and (y) Borrower to a Subsidiary of Borrower, (ii) among Wholly-outs Owned Subsidiaries, and environmental indemnifications related (iii) from a Subsidiary of Borrower to a Marketing Subsidiary, so long as the aggregate amount of such loans from time to time owing by the Marketing Subsidiaries does not exceed the difference between (I) the Marketing Subsidiary Sublimit, less (II) the sum of (A) the aggregate amount of Guaranties outstanding pursuant to Section 7.15(f), and (B) the aggregate amount of other Investments then made in the Marketing Subsidiaries pursuant to Section 7.14(o)(ii) (it being understood that to the extent such limit is exceeded solely as a result of an increase in the value of any such Investment attributable to the undistributed net earnings of the Marketing Subsidiaries, it shall not be deemed a violation of this Section 7.15(e));
(f) Indebtedness incurred by consisting of Guaranties of the Indebtedness of the Marketing Subsidiaries (including Long-Term Guaranties), provided that such Indebtedness shall only be permitted to the extent the aggregate amount of such Indebtedness, when added to the sum of (i) the aggregate amount of all intercompany loans made to the Marketing Subsidiaries pursuant to Section 7.15(e), plus (ii) the aggregate amount of all other than Investments made in Marketing Subsidiaries pursuant to Section 7.14(o)(ii), plus (iii) the aggregate amount of “L/C Obligations” outstanding attributable to “Marketing Subsidiary Letter of Credit” (as such terms are defined in the Existing Credit Agreement)does not exceed the Marketing Subsidiary Sublimit (it being understood that to the extent such limit is exceeded solely as a result of an increase in the value of any Subsidiary Guarantor) such Investment attributable to the undistributed net earnings of the REIT GuarantorMarketing Subsidiaries, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing it shall not preclude Subsidiaries be deemed a violation of this Section 7.15(f)) provided, further that Borrower shall promptly provide the Administrative Agent with a copy of any such Guarantee and any modification to such Guarantee;
(g) Indebtedness of the REIT Guarantor (other than Borrower or a Marketing Subsidiaries under the Marketing Subsidiary Guarantor) from incurring Excluded Credit Facility in an aggregate amount not to exceed the Marketing Subsidiary Indebtedness which would be prohibited by the terms of this §8.1).Limit;
Appears in 2 contracts
Sources: Credit Agreement (Black Hills Corp /Sd/), Credit Agreement (Black Hills Corp /Sd/)
Restrictions on Indebtedness. The Credit Loan Parties will not create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(i) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge Provider;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iii) current liabilities of the Credit Parties incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(iviii) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(viv) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(viv) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viivi) Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity in the ordinary course of business in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith;
(vii) Indebtedness of the REIT and the Borrower with respect to customary Non-Recourse Exclusions and environmental indemnities in connection with Indebtedness permitted to be incurred by Subsidiaries; and
(viii) Other Indebtedness of the Borrower and REIT Guarantor and the Borrower (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower they remain in compliance with the covenants set forth in §§9.1 through 9.5 Article 9 after incurring giving effect to the incurrence of such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1).
Appears in 2 contracts
Sources: Credit Agreement (Wheeler Real Estate Investment Trust, Inc.), Credit Agreement (Wheeler Real Estate Investment Trust, Inc.)
Restrictions on Indebtedness. The Credit Parties Borrowers will not create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iiib) current liabilities of the Credit Parties Borrowers incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(vd) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(vie) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viif) Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity in of the ordinary course of business Parent Borrower in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements completion and similar agreements incurred guaranties in an aggregate amount at any one time not in excess of the ordinary course greater of business in connection with (i) $175,000,000 or (ii) fifteen percent (15%) of the development of Real Estate or construction of infrastructure in connection therewith; andGross Asset Value;
(viiig) Other Indebtedness of the Parent Borrower, the REIT Guarantor and the Borrower (but not or any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by of their Subsidiaries (other than any Subsidiary Guarantor) Borrower), provided that none of such Persons shall incur any of the REIT GuarantorIndebtedness described in this §8.1(g) unless it shall have provided to the Agent prior written notice of the proposed incurrence of such Indebtedness, provided a statement that the REIT Guarantor borrowing will not cause a Default or Event of Default and a Compliance Certificate demonstrating that the Borrower remain Borrowers will be in compliance with its covenants referred to therein after giving effect to the covenants set forth incurrence of such Indebtedness;
(h) Derivatives Contracts (including Approved Derivatives Contracts) reasonably acceptable to Agent sufficient to ensure the Borrowers’ compliance with §9.7; and
(i) the 2014 Term Loan Agreement.
(j) Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §§9.1 through 9.5 after incurring 8.1(g) above shall have any of the Eligible Real Estate Assets or any interest therein or any direct or indirect ownership interest in any Subsidiary Borrower as collateral, a borrowing base, asset pool or any similar form of credit support for such Indebtedness. The Indebtedness (provided that the foregoing shall not preclude Subsidiaries of the REIT Guarantor Borrowers (other than Borrower or a Subsidiary GuarantorBorrower) from incurring Indebtedness which would be prohibited by subject to the terms of this §8.1)8.1 or recourse to the general credit of Parent Borrower) and (ii) none of the Subsidiary Borrowers, Parent Borrower nor REIT shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (including, without limitation, pursuant to any conditional or limited guaranty or indemnity agreement creating liability with respect to usual and customary exclusions from the non recourse limitations governing the Non-Recourse Indebtedness of any Person, or otherwise) other than Indebtedness described in §8.1(a)-(i) above.
Appears in 2 contracts
Sources: Credit Agreement (CoreSite Realty Corp), Credit Agreement (CoreSite Realty Corp)
Restrictions on Indebtedness. The Credit Parties Borrower will not, and will not permit any of its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness arising under the Existing Credit Agreement (as effect on the date hereof and after giving effect to any amendments or modifications thereto which do not result in aggregating amounts available thereto in excess of $1,300,000,000) and Indebtedness to the Lenders and the Agents arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iii) current liabilities of the Credit Parties incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(iv) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(v) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(vib) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viic) Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity in the ordinary course of business in connection with the construction or development acquisition after the Closing Date of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements Property (and in any event not more than ninety (90) days from the date of such acquisition) by the Borrower or such Subsidiary as contemplated by Section 8.2(x);
(d) obligations under or guaranties of Capitalized Leases;
(e) Indebtedness in respect of Hedging Agreements entered into for hedging purposes only and not for speculation; provided that nothing in this Section 8.1(e) shall be deemed to construct prohibit equity hedging arrangements that constitute Restricted Payments permitted pursuant to Section 8.4;
(f) Indebtedness existing on the Closing Date and listed and described on Schedule 8.1 hereto including any extensions or pay for on-site or off-site improvements refinancings thereof on substantially similar terms as the Indebtedness being refinanced and similar agreements incurred provided there is no increase in the ordinary course amount thereof;
(g) unsecured Indebtedness of business any of the Borrower’s Subsidiaries to, or in connection with respect of Obligations of, the development Borrower or another Subsidiary of Real Estate the Borrower consisting of intercompany loans and, if no Default or construction Event of infrastructure Default shall have occurred and be continuing at the time such Indebtedness is incurred, any other Investments;
(h) unsecured Indebtedness of the Borrower to, or in connection therewithrespect of obligations of, a Subsidiary of the Borrower consisting of intercompany loans and, if no Default or Event of Default shall have occurred and be continuing at the time such Indebtedness is incurred, any other Investments;
(i) unsecured Indebtedness of the Borrower having a maturity at least three (3) months after the Maturity Date, in aggregate principal amount not to exceed $200,000,000; provided that at the time of incurrence such Indebtedness, no Default or Event of Default has occurred and is continuing or would result therefrom; and
(viiij) Other Indebtedness of the REIT Guarantor Borrower and its Subsidiaries in addition to Indebtedness otherwise permitted by clause (a) to (i) above with an aggregate principal Dollar Equivalent amount outstanding not to exceed 40% of Consolidated Tangible Net Worth (determined as of the Borrower (but not any other Credit Partylast day of the Fiscal Quarter most recently ended), including in connection with customary recourse carve-outs provided that at the time of incurrence of such Indebtedness no Default or Event of Default has occurred and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower is continuing or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1)result therefrom.
Appears in 2 contracts
Sources: Senior Secured Credit Agreement (Borders Group Inc), Senior Secured Credit Agreement (Pershing Square Capital Management, L.P.)
Restrictions on Indebtedness. The Credit Parties Except as permitted in §8.1(f) below, the Trust will not (other than solely as a result of its status as a general partner of the Borrower) create, incur, assume, guarantee or be or remain liable, contingently or otherwise with respect to any Indebtedness other than the Obligations and any Indebtedness of the Borrower permitted under the terms of this §8.
1. The Borrower will not, and will not permit any of its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders Banks arising under any of the Loan Documents Documents, and Hedge Obligations Indebtedness and obligations in respect of the Interest Rate Contract(s) required pursuant to a Lender Hedge Provider§7.18 and §7.20;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iiib) current liabilities of the Credit Parties Borrower or its Subsidiaries incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(vd) Indebtedness in respect of judgments only to or awards the extent, for the period and for an amount existence of which does not resulting in create an Event of Default;
(vie) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viif) Indebtedness incurred subject to any other landownersthe provisions of §9, government or quasi(i) Non-government or entity or similar entity in the ordinary course of business in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith; and
(viii) Other recourse Indebtedness of the REIT Guarantor and the Borrower (but not or any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by of its Subsidiaries (other than Subsidiary Guarantors), and (ii) Indebtedness of Borrower, the Trust or any of the Borrower’s Subsidiaries (other than Subsidiary GuarantorGuarantors) under environmental indemnities and guarantees with respect to customary exceptions to exculpatory language with respect to Non-recourse Indebtedness of Borrower’s Subsidiaries or Unconsolidated Affiliates permitted pursuant to §8.3(i) (it being agreed that any such indemnity or guaranty shall not cause such Non-recourse Indebtedness to be deemed to be Recourse Indebtedness and provided that in the event any claim is made against Borrower, the Trust or any of their respective Subsidiaries with respect to such indemnities, guarantees or exceptions, the amount so claimed shall be considered a recourse liability of such Person);
(g) Indebtedness in respect of reverse repurchase agreements having a term of not more than one hundred eighty (180) days with respect to Investments described in §8.3(d) or (e);
(h) subject to the provisions of §9, other Recourse Indebtedness (whether secured or unsecured) of the REIT Guarantor, Borrower and its Subsidiaries provided that in no event shall Secured Recourse Indebtedness of Borrower in the REIT Guarantor aggregate exceed fifteen percent (15%) of Consolidated Total Adjusted Asset Value (provided that the liability under any completion guaranty shall equal the remaining costs to complete the applicable construction project in excess of construction loan or mezzanine loan proceeds available therefor and any equity deposited or invested for the payment of such costs; and provided further that Indebtedness of Borrower remain or any of its Subsidiaries with respect to the TIF Guaranty and any other guaranty obligation which the Majority Banks may in compliance with the covenants set forth their sole discretion approve in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing writing shall not preclude Subsidiaries be included for the purposes of §8.1(h) unless (i) a claim shall have been made against the REIT Guarantor (other than Trust, Borrower or a Subsidiary Guarantorof either of them on account of such guaranty or (ii) from incurring with respect to any other guaranty obligation which the Majority Banks may in their sole discretion approve in writing to not be included for the purposes of §8.1(h), the occurrence of such other events with respect thereto as the Majority Banks may require in connection with their approval of such obligation). The Subsidiary Guarantors may be liable with respect to Unsecured Indebtedness which would be prohibited by of the terms of this §8.1).Borrower but not Secured Indebtedness; and
Appears in 2 contracts
Sources: Unsecured Term Loan Agreement (Ramco Gershenson Properties Trust), Unsecured Term Loan Agreement (Ramco Gershenson Properties Trust)
Restrictions on Indebtedness. The Credit Parties will not createCreate, incur, assumesuffer or permit to exist, guarantee or be assume or guarantee, either directly or indirectly, or otherwise become or remain liable, contingently or otherwise, liable with respect to to, any Indebtedness other thanIndebtedness, except the following:
(ia) Indebtedness to the Lenders arising and the Agent under any of this Agreement, the Term Loan Documents Notes, and Hedge Obligations to a the other Lender Hedge ProviderAgreements;
(iib) Unsecured Indebtedness the InterCompany Debt and such other indebtedness by the Borrower to American Ski and its Subsidiaries provided that it is governed by the Credit Parties remain in compliance with Subordination Agreement;
(c) the covenants set forth in §9 after incurring such Purchase Money Indebtedness;
(iiid) current liabilities as to the Borrower Subsidiaries, Permitted Construction Loans, and indebtedness of a Subsidiary of Borrower associated with the Credit Parties incurred in exercise of Borrower's rights under the ordinary course of businessPurchase Option (collectively, including but "Permitted Financial Facilities") Indebtedness shall not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but not incurred through constitute a Permitted Financial Facility or a Permitted Construction Loan unless: (i) the borrowing of moneyterms and conditions and documents evidencing and securing the Indebtedness, or and any proposed modifications thereto, have been approved in advance by the Agent and (ii) no such document or instrument either prohibits or causes the obtaining acceleration of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases the respective Indebtedness upon the pledge of goods and services;
(iv) Indebtedness in respect the equity interests of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies the Borrower Subsidiary to the extent that payment therefor shall not at Agent or upon the time be required to be made in accordance with foreclosure of such pledge by the provisions of §7.8;
(v) Indebtedness in respect of judgments only Agent. Agent hereby approves those documents and instruments delivered to the extent, for Agent on or before the period and for an amount Closing Date (but not resulting in an Event of Default;
(viotherwise) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(vii) Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity in the ordinary course of business executed in connection with the construction Permitted Construction Loans which have been closed as of the Closing Date, and such facilities shall constitute Permitted Financial Facilities regardless of satisfaction of the conditions of the preceding sentence. Subject to the preceding sentence, any Indebtedness of the Borrower or development a Borrower Subsidiary that initially qualifies as a Permitted Financial Facility shall automatically be disqualified as a Permitted Financial Facility upon the failure of the Borrower or the Borrower Subsidiary to meet the requirements set forth above;
(e) the existing indebtedness set forth on Schedule 5.16, or otherwise approved by the Agent from time to time subject to the conditions established in subsection (d) and the guaranty of a portion of the Key Bank Facility;
(f) guaranties by a Borrower Subsidiary for the Indebtedness permitted hereunder of another Borrower Subsidiary;
(g) Indebtedness which refinances any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements previously permitted Indebtedness hereunder provided the terms and conditions of such Indebtedness are no less stringent that the previous permitted Indebtedness and the refinance Indebtedness otherwise meets the requires established herein for permitted Indebtedness;
(h) the Senior Note Guaranty provided that it remains subordinate to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with Lender Obligations;
(i) such other subordinated indebtedness as is approved by the development of Real Estate or construction of infrastructure in connection therewithAgent; and
(viiij) Other Indebtedness of indebtedness under the REIT Guarantor and the Borrower (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1)Purchase Option.
Appears in 2 contracts
Sources: Credit Agreement (Asc East Inc), Credit Agreement (American Skiing Co /Me)
Restrictions on Indebtedness. The Credit Parties Except as permitted in §8.1(f) below, the Trust will not (other than solely as a result of its status as a general partner of the Borrower) create, incur, assume, guarantee or be or remain liable, contingently or otherwise with respect to any Indebtedness other than the Obligations and any Indebtedness of the Borrower permitted under the terms of this §8.
1. The Borrower will not, and will not permit any of its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders Banks arising under any of the Loan Documents Documents, and Hedge Obligations Indebtedness and obligations in respect of the Interest Rate Contract(s) required pursuant to a Lender Hedge Provider§7.18;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iiib) current liabilities of the Credit Parties Borrower or its Subsidiaries incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(vd) Indebtedness in respect of judgments only to or awards the extent, for the period and for an amount existence of which does not resulting in create an Event of Default;
(vie) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viif) subject to the provisions of §9, (i) Non-recourse Indebtedness of the Borrower or any of its Subsidiaries (other than Subsidiary Guarantors), and (ii) Indebtedness incurred of Borrower, the Trust or any of the Borrower’s Subsidiaries (other than Subsidiary Guarantors) under environmental indemnities and guarantees with respect to customary exceptions to exculpatory language with respect to Non-recourse Indebtedness of Borrower’s Subsidiaries or Unconsolidated Affiliates permitted pursuant to §8.3(i) (it being agreed that any such indemnity or guaranty shall not cause such Non-recourse Indebtedness to be deemed to be Recourse Indebtedness and provided that in the event any claim is made against Borrower, the Trust or any of their respective Subsidiaries with respect to such indemnities, guarantees or exceptions, the amount so claimed shall be considered a recourse liability of such Person);
(g) Indebtedness in respect of reverse repurchase agreements having a term of not more than one hundred eighty (180) days with respect to Investments described in §8.3(d) or (e);
(h) subject to the provisions of §9, other Recourse Indebtedness (whether secured or unsecured) of the Borrower and its Subsidiaries provided that in no event shall Secured Recourse Indebtedness of Borrower in the aggregate exceed fifteen percent (15%) of Consolidated Total Adjusted Asset Value (provided that the liability under any completion guaranty shall equal the remaining costs to complete the applicable construction project in excess of construction loan or mezzanine loan proceeds available therefor and any equity deposited or invested for the payment of such costs; and provided further that Indebtedness of Borrower or any of its Subsidiaries with respect to the TIF Guaranty and any other guaranty obligation which the Majority Banks may in their sole discretion approve in writing shall not be included for the purposes of §8.1(h) unless (i) a claim shall have been made against the Trust, Borrower or a Subsidiary of either of them on account of such guaranty or (ii) with respect to any other landownersguaranty obligation which the Majority Banks may in their sole discretion approve in writing to not be included for the purposes of §8.1(h), government or quasi-government or entity or similar entity the occurrence of such other events with respect thereto as the Majority Banks may require in connection with their approval of such obligation). The Subsidiary Guarantors may be liable with respect to Unsecured Indebtedness of the Borrower but not Secured Indebtedness; and
(i) Indebtedness in respect of purchase money financing for equipment, computers and vehicles acquired in the ordinary course of the Borrower’s business in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith; and
(viii) Other Indebtedness of the REIT Guarantor and the Borrower (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1)exceeding $5,000,000.00.
Appears in 2 contracts
Sources: Unsecured Master Loan Agreement (Ramco Gershenson Properties Trust), Unsecured Term Loan Agreement (Ramco Gershenson Properties Trust)
Restrictions on Indebtedness. The Credit Parties Except with the prior written consent of the Requisite Lenders, the Borrower will not, the Company will not, and the Borrower will not permit any Guarantor, any of the Related Companies or any Permitted Joint Venture to create, incur, assume, guarantee or be become or remain liable, contingently or otherwise, or agree not to do any of same with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iiib) current liabilities of the Credit Parties Borrower incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §Section 7.8;
(vd) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the period Borrower shall at the time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(vie) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viif) Indebtedness incurred of Borrower, the Company or the Related Companies to any other landownersthe extent the same does not create a violation of Section 9.3, government Section 9.5 or quasi-government or entity or similar entity Section 9.6 provided that the maximum principal amount of Recourse Indebtedness permitted under this paragraph shall not exceed $50,000,000 in the ordinary course of business in connection with the construction or development of aggregate at any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith; and
(viii) Other Indebtedness of the REIT Guarantor and the Borrower (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1)time outstanding.
Appears in 2 contracts
Sources: Credit Agreement (Prime Group Realty Trust), Credit Agreement (Prime Group Realty Trust)
Restrictions on Indebtedness. The Credit Parties Borrower will not, and will not permit any of its Subsidiaries to, create, incur, assume, guarantee or be become or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iiib) current liabilities of the Credit Parties Borrower or such Subsidiary incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but business not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.86.8 hereof;
(vd) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the period Borrower or such Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(vie) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viif) Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity in respect of documentary letters of credit issued in the ordinary course of business business;
(g) Indebtedness of the Borrower in respect of interest rate protection arrangements and exchange rate protection arrangements;
(h) Indebtedness existing on the Closing Date and listed and described on Schedule 7.1 hereto or any refinancing thereof on substantially similar terms as the Indebtedness being refinanced;
(i) Subordinated Debt;
(j) obligations under Capitalized Leases;
(k) Indebtedness in respect of intercompany loans, guaranties and, so long as no Default or Event of Default shall have occurred and be continuing at the time such Indebtedness is incurred, other Investments and contingent obligations to make Investments, (i) from the Borrower to any of its Subsidiaries or of any of its Subsidiaries’ obligations or (ii) between Subsidiaries of the Borrower or of any of the Borrower’s Subsidiaries’ obligations, or (iii) from any Subsidiary of the Borrower to the Borrower or of any of the Borrower’s obligations;
(l) Indebtedness incurred in connection with the construction or development acquisition after the Closing Date of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct real or pay for on-site personal property by the Borrower or off-site improvements and similar agreements incurred in any Subsidiary of the ordinary course of business in connection with the development of Borrower as contemplated by §7.2(ix) hereof;
(m) Indebtedness secured by a lien on Real Estate of the Borrower or construction its Subsidiaries; provided that the aggregate amount of infrastructure Indebtedness permitted pursuant to this §7.1(m) shall not, at any time, exceed the fair market value of the Real Estate securing such Indebtedness;
(n) other Indebtedness of the Borrower and its Subsidiaries (whether or not such Subsidiaries are Guarantors), provided that (i) with respect to Indebtedness incurred by the Borrower or a Guarantor, such Indebtedness contains covenants that are no more restrictive on the Borrower or such Guarantor than the covenants contained in connection therewiththis Credit Agreement and (ii) immediately after such incurrence of Indebtedness, and after giving effect thereto on a pro forma basis, no Default or Event of Default shall then exist;
(o) Indebtedness consisting of Investments permitted under §7.3(m) hereof;
(p) Indebtedness payable at the election of the Borrower by the issuance of the Borrower’s capital stock; and
(viiiq) Other Indebtedness of the REIT Guarantor Borrower and its Subsidiaries in respect of receivables securitization transactions or other financing of any special purpose receivables Subsidiary of the Borrower, entered into or guaranteed by the Borrower (but and/or any of its Subsidiaries; provided that, the aggregate amount of all such Indebtedness shall not exceed $300,000,000 outstanding at any other Credit Party)time. Notwithstanding the foregoing, including in connection with customary recourse carve-outs and environmental indemnifications related to at no time shall the aggregate amount of Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided Borrower and its Subsidiaries consisting of guaranties and other Contingent Liabilities (excluding (i) Indebtedness permitted pursuant to §7.1 to the REIT Guarantor and extent such Indebtedness (or if such Indebtedness is a Contingent Liability of the Borrower remain and/or its Subsidiaries, the underlying Indebtedness relating to such Contingent Liability) is included in compliance with the covenants set forth calculation of Consolidated Total Funded Debt and (ii) obligations in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries respect of documentary letters of credit) exceed, in the aggregate, 15% of the REIT Guarantor (other than Stockholders’ Equity of the Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms at such time. For purposes of this Section, the amount of Contingent Liabilities in respect of interest rate protection arrangements and exchange rate protection arrangements permitted under §8.1)7.1(g) at any time shall be the net liability of the Borrower and its Subsidiaries under such arrangements at such time, calculated on a basis satisfactory to the Administrative Agent in accordance with accepted practice.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Staples Inc), Revolving Credit Agreement (Staples Inc)
Restrictions on Indebtedness. The Credit Parties Borrower will not, and will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(iib) Unsecured Indebtedness provided that to the Credit Parties remain Lender Hedge Providers in compliance with the covenants set forth in §9 after incurring such Indebtednessrespect of any Hedge Obligations;
(iiic) current liabilities of the Credit Parties Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivd) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(ve) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(vif) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;; and
(viig) subject to the provisions of §9, Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity of REIT and Borrower in respect of Derivatives Contracts that are entered into in the ordinary course of business in connection with and not for speculative purposes;
(h) subject to the construction or development provisions of any Real Estate§9, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for onNon-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Recourse Indebtedness that is secured by Real Estate or construction of infrastructure in connection therewith; and
(viii) Other Indebtedness of the REIT Guarantor and the Borrower (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time;
(j) unsecured Indebtedness of Subsidiaries of Borrower to Borrower; provided that any such Indebtedness of a Subsidiary of Borrower that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Pool Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary GuarantorGuarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, and (ii) none of the REIT GuarantorBorrower, provided the REIT Guarantor and the Borrower Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain in compliance liable, contingently or otherwise, with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person; and (z) no Subsidiary of Borrower which directly or indirectly owns a Subsidiary Guarantor) from incurring Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness which would be prohibited by other than Indebtedness to the terms of this §8.1)Lenders arising under the Loan Documents.
Appears in 2 contracts
Sources: Credit Agreement (Carter Validus Mission Critical REIT II, Inc.), Credit Agreement (Carter Validus Mission Critical REIT II, Inc.)
Restrictions on Indebtedness. The Credit Parties will not No Borrower shall become or be a guarantor or surety of, or otherwise create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness, or become or be responsible in any manner (whether by agreement to purchase any obligations, stock, assets, goods or services, or to supply or advance any funds, assets, goods or services or otherwise) with respect to any undertaking or Indebtedness of any other Person, or incur any Indebtedness other than:
(ia) Indebtedness to the Lenders Banks and the Administrative Agent arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(iib) Unsecured Indebtedness provided that the Credit Parties remain incurrence by any Borrower of guaranty, suretyship or indemnification obligations in compliance connection with the covenants set forth in §9 after incurring such Indebtedness;
(iii) current liabilities Borrower’s performance of the Credit Parties incurred services for its respective customers in the ordinary course of its business;
(c) Indebtedness of one Borrower (other than a Designated LLC) to another Borrower (other than a Designated LLC);
(d) other Indebtedness existing on the date hereof and listed and described on Schedule 7.1;
(e) (i) purchase money Indebtedness incurred in connection with the acquisition after the Closing Date of any real or personal property or under equipment leases or equipment chattel, including but (ii) existing Indebtedness of any Subsidiary acquired after the Closing Date (the “Acquired Subsidiary”) originally incurred by the Acquired Subsidiary in connection with the lease or acquisition of property or fixed assets used in the business of the Acquired Subsidiary; or with respect to industrial finance bonds issued to finance the purchase of such property or assets; (iii) Indebtedness with respect to obligations under Capitalized Leases (iv) other unsecured Indebtedness; and (v) Indebtedness with respect to Subordinated Debt; provided that in the event that after the Closing Date any Subsidiary of the Parent guaranties any Subordinated Debt, the terms of such guaranty shall provide for the release of such guaranty upon the sale of stock or all or substantially all of the assets of such Subsidiary (even if such sale was made in a foreclosure); provided that the aggregate amount of such Indebtedness under this subsection (e) shall not limited exceed .5x EBITDA for the period of four (4) consecutive fiscal quarters most recently ended;
(f) Indebtedness with respect to short term unsecured financing arrangements landfill closure bonds of the Borrowers in an aggregate amount not to exceed $500,000 30,000,000;
(g) Noteholders’ Debt in the aggregate at any time, but principal amount not incurred through to exceed $75,000,000;
(h) Indebtedness with respect to (i) the borrowing ▇▇▇▇▇▇▇ County Bonds in an aggregate amount not to exceed (A) $34,969,367 in connection with the Series 2000 Bonds, and (B) $9,804,000 in connection with the Series 2003 Bonds, and (ii) Indebtedness with respect to other tax-exempt revenue bonds not to exceed $25,000,000 in the aggregate;
(i) Indebtedness of moneythe Borrowers to the Designated LLCs which is evidenced by Designated Intercompany Debentures, in an aggregate amount not to exceed $100,000,000;
(j) Indebtedness of a Designated LLC to a Borrower, whether in the form of intercompany payables, advances, notes or debentures, each of which is pledged to the Collateral Agent, the proceeds of which are loaned or contributed as capital to a direct or indirect Subsidiary of such Designated LLC, which Subsidiary is a Borrower (and not a Designated LLC); provided that the aggregate amount of all such Indebtedness permitted under this Section 7.1(j) shall not exceed $100,000,000;
(k) Guaranty obligations of Parent with respect to undertakings by ▇▇▇▇▇▇▇ County Disposal, Inc. (or ▇▇▇▇▇▇▇ County Disposal, LLC as successor to ▇▇▇▇▇▇▇ County Disposal, Inc.) under (i) the Remarketing and Interest Services Agreement by and between ▇▇▇▇▇▇▇ County Disposal, Inc., Parent and Wachovia Securities, Inc. and (ii) the obtaining of credit except for credit on an open account basis customarily extended Bond Purchase Agreement by and in fact extended in connection with normal purchases of goods among Wachovia Securities, Inc., The ▇▇▇▇▇▇▇ County Industrial Facilities and servicesPollution Control Financing Authority, ▇▇▇▇▇▇▇ County Disposal, Inc. and Parent;
(ivl) Indebtedness of the Borrowers in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies Swap Contracts satisfactory to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;Administrative Agent; and
(vm) Indebtedness of the Borrowers under fuel price swaps, fuel price caps, and fuel price collar or floor agreements, and similar agreements or arrangements designed to protect against or manage fluctuations in fuel prices with respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(vi) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(vii) Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity fuel purchased in the ordinary course of business in connection with of the construction Borrowers (“Fuel Derivatives Obligations”); provided that if the creation, incurrence, assumption or development existence of any Real EstateIndebtedness would constitute a default or an event of default under the Noteholders’ Debt, includingthen the creation, without limitationincurrence, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct assumption or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course existence of business in connection with the development of Real Estate or construction of infrastructure in connection therewith; and
(viii) Other such Indebtedness of the REIT Guarantor and the Borrower (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1)permitted hereunder.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Waste Industries Usa Inc), Revolving Credit Agreement (Waste Industries Usa Inc)
Restrictions on Indebtedness. The Credit Parties will not Neither the Borrower nor any of its Subsidiaries shall become or be a guarantor or surety of, or otherwise create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness, or become or be responsible in any manner (whether by agreement to purchase any obligations, stock, assets, goods or services, or to supply or advance any funds, assets, goods or services or otherwise) with respect to any Indebtedness of any other Person (other than the Borrower or any of its Subsidiaries), or incur any Indebtedness other than:
(a) Indebtedness arising under this Agreement or the other Loan Documents;
(i) Indebtedness incurred by the Borrower or any Subsidiary with respect to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge Provider;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iii) current liabilities of the Credit Parties suretyship or performance bond incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but not incurred through (i) the borrowing of money, or its business and undrawn landfill closure bonds;
(ii) Guarantees of any of its Subsidiaries' obligations to governmental authorities in lieu of the obtaining posting of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and servicesany landfill closure bonds;
(ivc) Unsecured Indebtedness in respect of taxesthe Borrower (and any guarantee thereof by the Guarantor), assessmentsincluding commercial paper and the 364 Day Facility, governmental charges which is pari passu or levies and claims for labor, materials and supplies subordinated to the extent Obligations; provided that payment therefor shall there does not exist a Default or Event of Default at the time of the incurrence of such Indebtedness and no Default or Event of Default would be required to be made in accordance with created by the provisions incurrence of §7.8such Indebtedness;
(vd) Indebtedness of the Guarantor and the Borrower's Subsidiaries listed in respect Schedule 8.1(d) and any extension, renewal or refinancing by the Guarantor or such Subsidiary of judgments only such Indebtedness, provided that the terms and conditions of any such extension, renewal or refinancing are substantially the same as the terms and conditions in effect on the Effective Date, or are more favorable to the extent, for the period and for an amount not resulting in an Event of Default;
(vi) endorsements for collection, deposit Guarantor or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(vii) Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity in the ordinary course of business in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewithsuch Subsidiary; and
(viiii) Other Indebtedness of the REIT Guarantor and the Borrower (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Borrower's Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor), (ii) secured Indebtedness of the Borrower, (iii) Indebtedness with respect to drawn landfill closure bonds, and (iv) Indebtedness with respect to Permitted Receivables Transactions; provided that the REIT Guarantor and the Borrower remain aggregate amount of all such Indebtedness in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing this Section 8.1(e) shall not preclude Subsidiaries exceed 15% of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1)Consolidated Tangible Assets at any time.
Appears in 2 contracts
Sources: Quarterly Report, Revolving Credit Agreement (Waste Management Inc)
Restrictions on Indebtedness. The Credit Parties Excluding a mortgage, junior to the Lender’s mortgage, when it does not agree to Fund the Expansion (the “Expansion Mortgage” the Borrower will not create, incur, assume, guarantee or be or remain liable, contingently contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders Lender arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iiib) current liabilities of the Credit Parties Borrower incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials materials and supplies to the extent that payment therefor therefore shall not at the time be required to be made in accordance with the provisions of §7.8Section 10.10 (provided, however, that with respect to any Indebtedness to the Contractor, the Contractor shall have entered into a subordination agreement (the "Contractor's Subordination Agreement"), in form and substance satisfactory to the Lender, subordinating the Borrower's obligation to pay Retainage to the full payment and performance of the Obligations);
(vd) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the period Borrower shall at the time in good faith be prosecuting an appeal or proceeding for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(vie) endorsements for collection, deposit or negotiation negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(vii) Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity in the ordinary course of business in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith; and
(viiif) Other unsecured Indebtedness of the REIT Guarantor and Borrower owing to any member of the Borrower (but not any other Credit Partyincluding the Required Equity Funds), including that is expressly subordinated and made junior to the payment and performance in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) full of the REIT Guarantor, provided the REIT Guarantor Obligations and the Borrower remain evidenced as such by a written instrument containing subordination provisions in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited form and substance approved by the terms of this §8.1)Lender.
Appears in 2 contracts
Sources: Construction Loan and Security Agreement (Griffin Land & Nurseries Inc), Construction Loan and Security Agreement (Griffin Land & Nurseries Inc)
Restrictions on Indebtedness. The Credit Parties will not create, incurCreate, assume, guarantee or otherwise become remain obligated in respect of, or permit or suffer to exist or to be created, assumed or remain liableincurred or to be outstanding, contingently any (A) indebtedness or otherwiseliability for borrowed money or for the deferred purchase price of property or services; (B) obligations as lessee under capital leases exceeding $500,000, with respect to any Indebtedness other than:
except capital leases entered into in the ordinary course of business; (i) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge Provider;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iiiC) current liabilities in respect of unfunded vested benefits under any benefits plan; (D) obligations under letters of credit, bankers’ acceptances, bank guarantees and surety bonds or similar instruments issued for the account of any Person; (E) all guaranties, endorsements (other than for collection or deposit in the ordinary course of business) and other contingent obligations to purchase, to provide funds for payment, to supply funds to invest in any Person, or otherwise to assure a creditor against loss; or (F) obligations secured by any lien, other than Permitted Liens, on property owned by the Borrower or any of its Subsidiaries, whether or not the obligations have been assumed (other than the obligations under the Note) or guarantee obligations other than (1) indebtedness of the Credit Parties Borrower secured by purchase-money liens as permitted in Section 5.2(b)(ii)(A) below, (2) accounts payable or other unsecured indebtedness to trade creditors for goods or services and current operating liabilities (other than for borrowed money) in each case which are incurred in the ordinary course of businessbusiness of the Borrower, including but not limited to short term unsecured financing arrangements not to exceed $500,000 (3) extensions, refinancings, modifications, amendments and restatements of any items described in the aggregate at any time, but not incurred through clauses (i) the borrowing of money1), or (ii2), provided that the principal amount thereof is not increased or the terms thereof are not modified to impose more burdensome terms upon the Borrower and its Subsidiaries, as the case may be (including, the shortening of the maturity of any such indebtedness), (4) bank guarantees provided by Borrower and the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(iv) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(v) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(vi) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(vii) Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity Subsidiaries in the ordinary course of business in connection with an aggregate amount at any time outstanding not to exceed $250,000 excluding any existing bank guarantees and (5) indebtedness evidenced by the construction or development Note. Notwithstanding the foregoing restrictions, the Borrower and the Subsidiaries may borrow without the Holder’s consent up to an aggregate of $18,000,000 (excluding the Loan and any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith; and
(viii) Other Indebtedness existing indebtedness as of the REIT Guarantor and the Borrower (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) date of the REIT Guarantor, provided the REIT Guarantor Purchase Agreement) for working capital and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1)general corporate purposes.”
Appears in 2 contracts
Sources: Note Purchase Agreement, Note Purchase Agreement (Yatra Online, Inc.)
Restrictions on Indebtedness. The Credit Parties Borrower and the Guarantors will not, and will not permit their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iiib) current liabilities of the Credit Parties Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(vd) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of a Default;
(vie) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viif) subject to the provisions of §9, Non-Recourse Indebtedness incurred of the REIT, Borrower and their respective Subsidiaries (other than the Subsidiary Guarantors or any other Subsidiary of Borrower owning an interest in a Subsidiary Guarantor); provided that REIT or the Borrower may provide a guaranty or indemnity with respect to Non-Recourse Exclusions in connection with such Non-Recourse Indebtedness; and
(g) subject to the provisions of §9, Indebtedness (other than Non-Recourse Indebtedness) of the REIT, Borrower and their respective Subsidiaries. Notwithstanding anything in this Agreement to the contrary, (i) none of the Subsidiary Guarantors shall create, incur, assume, guarantee or be or remain liable contingently or otherwise, with respect to any Indebtedness described in §8.1(f) or any Indebtedness described in §8.1(g) that is Secured Indebtedness, (ii) a Subsidiary Guarantor shall only provide a guaranty of other landownersUnsecured Indebtedness of the Borrower permitted pursuant to §8.1(g), government and (iii) none of the Indebtedness described in §8.1(f) or quasi§8.1(g) that is Secured Indebtedness shall have any of the Unencumbered Borrowing Base Properties or any interest therein or equipment related thereto or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, asset pool or any similar form of credit support for such Indebtedness (provided that the foregoing shall not preclude REIT or the Borrower from incurring liability with respect to Non-government or entity or similar entity in the ordinary course of business Recourse Exclusions in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith; and
(viii) Other Indebtedness of the REIT Guarantor and the Borrower (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth described in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.18.1(f)).
Appears in 2 contracts
Sources: Term Loan Agreement (Mid America Apartment Communities Inc), Credit Agreement (Mid America Apartment Communities Inc)
Restrictions on Indebtedness. The Credit Parties Borrower will not, and will not permit its Subsidiaries to, create, incur, assume, guarantee assume or be or remain liable, contingently or otherwise, with respect suffer to exist any Indebtedness other than:
(ia) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderBorrower or its Subsidiaries of any kind whatsoever existing on the Effective Date;
(iib) Unsecured Permitted Refinancing Indebtedness;
(c) Indebtedness provided by an Operating Subsidiary of the Borrower that is non-recourse to the Credit Parties remain Borrower and incurred for working capital purposes or in compliance with the covenants set forth in §9 after form of Capitalized Lease Liabilities, mortgage financings or purchase money obligations solely for such Subsidiary incurring such Indebtedness;
(iiid) current liabilities of the Credit Parties Indebtedness incurred in the ordinary course course, excluding, to the extent included, with respect to the Borrower, Indebtedness for borrowed money (including Contingent Liabilities relating to borrowed money); and
(e) additional Indebtedness incurred after the Effective Date consisting of: (i) intercompany loans evidenced by intercompany notes between the Borrower and its Subsidiaries provided that such intercompany notes are pledged as Collateral, (ii) Permitted Subsidiary Intercompany Indebtedness, (iii) hedging obligations of businesssubsidiaries of BV in connection with their operations, including but not limited to short term unsecured financing arrangements (iv) letters of credit obtained in the support of trading activities of Subsidiaries of BV, (v) additional Indebtedness incurred by subsidiaries of BV not to exceed $500,000 in the aggregate at any time, but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended 100,000,000 and in fact extended in connection with normal purchases of goods and services;
(iv) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(v) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(vi) endorsements for collection, deposit or negotiation and warranties unsecured interest rate hedging obligations of products or services, in each case incurred in the ordinary course of business;
(vii) Indebtedness incurred Borrower with respect to any other landowners, government or quasi-government or entity or similar entity in the ordinary course of business in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith; and
(viii) Other Indebtedness of the REIT Guarantor and the Borrower (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1)Borrower.
Appears in 2 contracts
Sources: Credit Agreement (Edison Mission Energy), Credit Agreement (Edison Mission Energy)
Restrictions on Indebtedness. The Credit Parties Borrower will not, and will not permit its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iiib) current liabilities of the Credit Parties Borrower or its Subsidiaries incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(vd) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an a Default or Event of Default;
(vie) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viif) subject to the provisions of §9, Non-Recourse Indebtedness incurred of the Borrower and its Subsidiaries (other than the Guarantors, the Unencumbered Property Subsidiaries or any other Subsidiary of Borrower or a Controlled JV Entity owning an interest in a Guarantor or an Unencumbered Property Subsidiary); provided that the Borrower may provide a guaranty or indemnity with respect to Non-Recourse Exclusions in connection with such Non-Recourse Indebtedness; and
(g) subject to the provisions of §9, Indebtedness (other than Non-Recourse Indebtedness) of Borrower and its Subsidiaries. Notwithstanding anything in this Agreement to the contrary, (i) none of the Guarantors, if any, nor Unencumbered Property Subsidiaries (including without limitation any Controlled JV Entity which owns a Controlled JV Entity) shall create, incur, assume, guarantee or be or remain liable contingently or otherwise, with respect to any Indebtedness described in §8.1(f) or any Indebtedness described in §8.1(g) that is Secured Indebtedness, (ii) a Guarantor, if any, shall only provide a guaranty of other landownersUnsecured Indebtedness of the Borrower permitted pursuant to §8.1(g), government and (iii) none of the Indebtedness described in §8.1(f) or quasi§8.1(g) that is Secured Indebtedness shall have any of the Unencumbered Properties or any interest therein or equipment related thereto or any direct or indirect ownership interest in any Guarantor, if any, or Unencumbered Property Subsidiary as collateral, a borrowing base, asset pool or any similar form of credit support for such Indebtedness (provided that the foregoing shall not preclude the Borrower from incurring liability with respect to Non-government or entity or similar entity in the ordinary course of business Recourse Exclusions in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith; and
(viii) Other Indebtedness of the REIT Guarantor and the Borrower (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth described in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.18.1(f)).
Appears in 2 contracts
Sources: Credit Agreement (Mid-America Apartments, L.P.), Credit Agreement (Mid-America Apartments, L.P.)
Restrictions on Indebtedness. The Credit Parties Borrower will not, and the Borrower will not permit any of the Related Companies or any Controlled Unconsolidated Entity to create, incur, assume, guarantee or be become or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to arising under the Lenders arising Secured Revolving Credit Agreement or under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iiib) current liabilities of the Credit Parties Borrower incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(vd) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the period Borrower shall at the time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(vie) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viif) Indebtedness incurred of Borrower or the Related Companies to any other landownersthe extent the same does not create a violation of §9.3, government §9.4 or quasi-government §9.5 and is subject to terms and conditions consistent with conventional commercial real estate lending practices, provided that upon the creation or entity or similar entity in the ordinary course of business in connection with the construction or development assumption of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred such Indebtedness in an amount exceeding $5,000,000 Borrower shall provide the ordinary course of business in connection Agent with the development of Real Estate or construction of infrastructure in connection therewith; and
(viii) Other Indebtedness of the REIT Guarantor and the Borrower (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by notice describing the terms of this §8.1)such Indebtedness and the security therefor and a Compliance Certificate with updated calculations reflecting such Indebtedness.
Appears in 2 contracts
Sources: Unsecured Revolving Credit Agreement (Amerivest Properties Inc), Unsecured Revolving Credit Agreement (Amerivest Properties Inc)
Restrictions on Indebtedness. The Credit Loan Parties will not create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(i) (x) Indebtedness to the Lenders arising under any of the Loan Documents and Documents, (y) Hedge Obligations to a Lender Hedge Provider, and (z) Indebtedness to any counterparty other than a Lender Hedge Provider with respect to any Derivatives Contracts made in the ordinary course of business (and not for speculative purposes);
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iii) current liabilities of the Credit Parties incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(iviii) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(viv) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(viv) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viivi) Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity in the ordinary course of business in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith; and
(viiivii) Other (a) Secured Recourse Indebtedness of Parent Borrower, Parent Guarantor, or IR OpCo as and to the extent not prohibited (and subject to the limitations set forth) in §9.6 and (b) Unsecured Recourse Indebtedness of the REIT Loan Parties as and to the extent not prohibited (and subject to the limitations set forth) in §9.9;
(viii) (a) the Indebtedness set forth on Schedule 8.1 hereto, and any Permitted Refinancing Indebtedness in respect of any such Indebtedness, (b) Indebtedness (including Capitalized Leases) financing the acquisition or replacement of equipment and, limited as to each of the Subsidiary Borrowers, to $25,000.00 per fiscal year, and (c) intercompany Indebtedness of the Loan Parties outstanding from time to time; provided that all such intercompany Indebtedness of any Loan Party owed to any Subsidiary of Parent Guarantor and that is not a Loan Party shall be subordinated to the Borrower Obligations pursuant to an Intercompany Note;
(but ix) Non-Recourse Indebtedness entered into in the ordinary course of business of the Loan Parties (other than a Subsidiary Borrower) (including, without limitation, any Indebtedness referred to in the proviso to the definition of Secured Recourse Indebtedness);
(x) [Reserved];
(xi) Recourse Indebtedness consisting of the Non-Recourse Exclusions in respect of Non-Recourse Indebtedness permitted to be incurred pursuant to §8.2(ix);
(xii) subject to the provisions of §9.6, Indebtedness of the Loan Parties (other than a Subsidiary Borrower) in an amount not any other Credit Party), including to exceed $100,000.00 in the aggregate assumed in connection with customary recourse carve-outs an Investment not prohibited by this Agreement and environmental indemnifications related any Permitted Refinancing Indebtedness incurred, issued or otherwise obtained to Refinance (in whole or in part) such Indebtedness; provided that, (A) immediately after giving effect to such Indebtedness, no Event of Default exists or is continuing or would result therefrom, and (B) such Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) is and remains solely the obligation of the REIT GuarantorPerson and/or such Person’s subsidiaries that are acquired and such Indebtedness was not incurred in anticipation of such Investment;
(a) Indebtedness in respect of any bankers’ acceptance, provided bank guarantees, letters of credit, warehouse receipt or similar facilities entered into in the REIT 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 (b) Indebtedness represented by letters of credit, to the extent such letters of credit support Indebtedness otherwise permitted under this §8.1(xiii);
(xiv) Indebtedness arising from agreements providing for deferred compensation, indemnification, adjustments of purchase price (including “earnouts”) or similar obligations, in each case entered into in connection with any Investments not prohibited by this Agreement;
(xv) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations incurred in the ordinary course of business and not in connection with the borrowing of money;
(xvi) Indebtedness consisting of obligations to pay insurance premiums arising in the ordinary course of business and not in connection with the borrowing of money;
(xvii) Indebtedness representing deferred compensation to employees, consultants or independent contractors of, Parent Guarantor and its Subsidiaries incurred in the Borrower remain ordinary course of business or in compliance connection with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall any Investments not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by this Agreement;
(xviii) obligations, under cash management agreements, cash management services and other Indebtedness in respect of netting services, automatic clearing house arrangements, employees’ credit or purchase cards, overdraft protections and similar arrangements in each case incurred in the terms ordinary course of this business;
(xix) Indebtedness comprising take or pay obligations contained in supply agreements entered into the ordinary course of business; and
(xx) all customary premiums (if any), interest (including post-petition and capitalized interest), fees, expenses, charges and additional or contingent interest on obligations described in each of §8.1)8.1(i) through §8.1(xix) above.
Appears in 2 contracts
Sources: Term Loan Agreement (Independence Realty Trust, Inc.), Term Loan Agreement (Independence Realty Trust, Inc.)
Restrictions on Indebtedness. The None of the Credit Parties nor any of its Subsidiaries will not create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders arising under of not more than $3,000,000 outstanding at any of the Loan Documents one time secured by purchase money security interests and Hedge Obligations to a Lender Hedge ProviderCapitalized Leases permitted by Section 7.03(a)(vi);
(iib) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iii) current liabilities of the Credit Parties incurred consisting of the Obligations under the Loan Documents;
(c) [Reserved];
(d) Indebtedness in respect of Swap Contracts entered into not for speculative purposes in the ordinary course of business;
(e) unsecured Subordinated Debt incurred after the Closing Date on terms and conditions acceptable to the Administrative Agent in its sole discretion, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but not incurred through provided that (i) the borrowing maturity date of money, such Subordinated Debt shall be at least one hundred and eighty (180) days following the Maturity Date (after taking in account any extension thereof) and (ii) the aggregate amount of such Subordinated Debt shall not exceed $2,000,000;
(f) Indebtedness consisting of intercompany loans and advances permitted by Section 7.01; provided that i4c shall not incur any such Indebtedness or accept such advances directly or indirectly other than (i) as a result of the fair and reasonable allocation of overhead and administrative expenses among the Credit Parties or (ii) the obtaining of credit except for credit on an open account basis customarily extended and only as described in fact extended in connection with normal purchases of goods and servicesSection 7.01(c);
(ivg) Guarantees by any Credit Party of Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8any other Credit Party permitted by this Section 7.02;
(vh) Indebtedness in respect consisting of judgments only to the extentcontingent liabilities under surety bonds, for the period performance bonds and for an amount not resulting in an Event of Default;
(vi) endorsements for collection, deposit or negotiation and warranties of products or services, in each case similar instruments incurred in the ordinary course of business;
(viii) unsecured Indebtedness incurred to any arising from the honoring by a bank or other landownersfinancial institution of a check, government or quasi-government or entity draft or similar entity instrument inadvertently drawn against insufficient funds in the ordinary course of business in connection with business; provided, however, that such Indebtedness is (A) extinguished within three (3) Business Days of the construction or development of any Real Estateincurrence thereof, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements (B) incurred in the ordinary course of business in respect of pooled accounts and similar arrangements, in each case, in connection with cash management and deposit accounts in the development ordinary course of Real Estate business, provided further that any Indebtedness arising under this clause (i) shall not exceed $100,000;
(j) Indebtedness incurred in the ordinary course of business in respect of credit cards, credit card processing services, debit cards, stored value cards, purchase cards and automated clearing house arrangements, including without limitation, Indebtedness listed on Schedule 7.02;
(k) to the extent constituting Indebtedness, obligations in respect of agreements for the deferred payment of premiums or construction to finance the deferred payment of infrastructure premiums owing by any Credit Party under any insurance policies entered into in the ordinary course of business that are either (i) unsecured or (ii) secured by a Lien permitted under Section 7.03(a)(xi);
(l) Indebtedness that may be deemed to exist under the agreements relating to any Permitted Acquisition as a result of the obligation of the applicable Credit Party to pay indemnification, contingent purchase price payments or other purchase price adjustments or similar obligations and subject to the limitations as to amounts set forth in the definition of Permitted Acquisition;
(m) Indebtedness under unsecured seller financing in connection therewithwith a Permitted Acquisition to the extent permitted under Section 7.01(i) and subject to the limitations as to amounts set forth in the definition of Permitted Acquisition; provided that any such Indebtedness shall be subordinated to the Obligations in a manner satisfactory to the Administrative Agent and otherwise contain terms, conditions and amounts reasonably satisfactory to the Administrative Agent;
(n) Indebtedness that may be deemed to exist in connection with Investments permitted pursuant to Section 7.01(c) or (d); and
(viiio) Other other unsecured Indebtedness of the REIT Guarantor and the Borrower (but in an aggregate principal amount not to exceed $250,000 at any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1)time outstanding.
Appears in 2 contracts
Sources: Credit Agreement (Intersections Inc), Credit Agreement (Intersections Inc)
Restrictions on Indebtedness. The Credit Parties Borrower will not, and will not permit any of its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than, so long as no Default or Event of Default shall then exist or would result therefrom:
(ia) Indebtedness to the Lenders Banks and the Agent arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(iib) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iii) current liabilities of the Credit Parties Borrower or such Subsidiary incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but business not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services; PROVIDED, that each account payable shall be paid or discharged in accordance with the Borrower's past customary practice within the appropriate time period after the same shall have become due and payable, unless the same shall currently be contested by the Borrower or such Subsidiary in good faith by appropriate proceedings or other appropriate action, and the Borrower or such Subsidiary, as the case may be, shall have set aside such reserves, if any, with respect thereto as are required by generally accepted accounting principles and deemed adequate by the Borrower;
(ivc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8Section 9.8;
(vd) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the period Borrower or such Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(vie) endorsements for collectionOther unsecured Indebtedness of the Borrower, deposit provided that (i) after the incurrence of such Indebtedness and after giving effect thereto, no Default or negotiation Event of Default shall then exist and warranties (ii) the aggregate outstanding principal amount of products or servicesall such Indebtedness shall not, at any time, exceed $10,000,000;
(f) Indebtedness of the Borrower and its Subsidiaries in each case respect of rental obligations (net of subleases) under leases (other than Capitalized Leases) incurred in the ordinary course of business, provided that the aggregate amount of such obligations required to be paid in any fiscal year shall not exceed $15,000,000;
(viig) Indebtedness incurred of the Borrower in respect of Capitalized Leases (net of subleases), provided that the aggregate Outstanding amount of all future principal payments owing under (i) Capitalized Leases existing on the date hereof and (ii) additional Capitalized Leases entered into pursuant to any other landowners, government or quasi-government or entity or similar entity this subsection (g) after the date hereof (as reflected in the ordinary course notes to the Borrower's audited financial statements in accordance with generally accepted accounting principles) shall not at any time exceed $20,000,000;
(h) Indebtedness existing on the Closing Date and listed and described on SCHEDULE 10.1 hereto;
(i) Indebtedness consisting of business the Senior Notes and the Additional Senior Notes;
(j) purchase money Indebtedness incurred in connection with the construction or development acquisition after the date hereof of any Real Estatereal or personal property by the Borrower or any of its Subsidiaries; PROVIDED that (i) the amount of such Indebtedness does not exceed the lesser of the fair market value or the purchase price of the property so acquired, (ii) any lien securing such Indebtedness covers only the property so acquired, and (iii) the aggregate principal amount of such Indebtedness shall not, at any time, exceed $10,000,000;
(k) Indebtedness in respect of interest rate protection arrangements and currency exchange protection arrangements; PROVIDED that the aggregate amount of such Indebtedness shall not, at any time, exceed $5,000,000;
(l) Indebtedness (i) of JA Joint Venture LLC owing to the Borrower; PROVIDED that the Investment corresponding to such Indebtedness is permitted pursuant to Section 10.3(l), (ii) of any non-Guarantor Subsidiary of the Borrower owing to the Borrower; PROVIDED that the Investment corresponding to such Indebtedness is permitted pursuant to Section 10.3(m)(i), and (iii) of any Subsidiary which is a Guarantor owing to the Borrower or another Subsidiary which is a Guarantor; PROVIDED that the Investment corresponding to such Indebtedness is permitted pursuant to Section 10.3(m)(ii);
(m) Indebtedness of any Person acquired by the Borrower in a Permitted Acquisition, PROVIDED that (i) after such Permitted Acquisition and after giving effect thereto on a Pro Forma Basis, no Default or Event of Default shall then exist, (ii) such Indebtedness was in existence prior to such Permitted Acquisition and was not incurred in contemplation thereof, and (iii) the aggregate amount of all such Indebtedness shall not, at any time, exceed $10,000,000;
(n) Indebtedness of the Borrower and its Subsidiaries issued to refinance or replace Indebtedness otherwise permitted under clauses (h), (j), or (m) of this Section 10.1, PROVIDED that (i) the aggregate amount of such Indebtedness does not exceed the principal amount of the Indebtedness so refinanced or replaced, (ii) such Indebtedness has a tenor no shorter than the Indebtedness so refinanced or replaced, (iii) such Indebtedness is on terms and conditions (including, without limitation, subdivision improvement agreementsterms relating to interest rate, development agreementsdefaults, reimbursement agreementsand mandatory prepayments) no more onerous to the Borrower or such Subsidiary than the Indebtedness so refinanced or replaced, infrastructure development agreementsand (iv) if secured, agreements such Indebtedness is not secured by liens on any assets of the Borrower or such Subsidiary which were not previously subject to construct liens securing the Indebtedness so refinanced or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewithreplaced; and
(viiio) Other Indebtedness prior to June 30, 2001 and from and after the merger of the REIT Guarantor Borrower and TRC, contingent liabilities arising from the Borrower (but indemnity contained in that certain tax disaffiliation agreement between TRC and Friendly Ice Cream Corporation not any other Credit Party), including to exceed in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1)aggregate $10,500,000.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Restaurant Co), Revolving Credit Agreement (Perkins Finance Corp)
Restrictions on Indebtedness. The Credit Parties Borrower will not, and will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(iib) Unsecured Indebtedness provided that to the Credit Parties remain Lender Hedge Providers in compliance with the covenants set forth in §9 after incurring such Indebtednessrespect of any Hedge Obligations;
(iiic) current liabilities of the Credit Parties Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivd) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(ve) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of a Default;
(vif) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viig) subject to the provisions of §9, and provided that the IPO Conditions Satisfaction Date has occurred, Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity in the ordinary course of business in connection with the construction or development of any Real Estate, that is Recourse Indebtedness (including, without limitation, subdivision improvement agreementsany completion or other guarantees, development agreementswhether incurred directly, reimbursement agreementsindirectly or through an Unconsolidated Affiliate) (excluding the Obligations), infrastructure development agreementsprovided that the aggregate amount of such Indebtedness shall not at any time exceed ten percent (10%) of Gross Asset Value. For avoidance of doubt, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in no Recourse Indebtedness other than the ordinary course of business in connection with Obligations shall be permitted unless the development of Real Estate or construction of infrastructure in connection therewithIPO Conditions Satisfaction Date has occurred; and
(viiih) Other subject to the provisions of §8.1 and §9, provided that the IPO Conditions Satisfaction Date has occurred, Secured Debt (excluding the Obligations, but including Non-Recourse Indebtedness), provided that the aggregate amount of such Secured Debt shall not exceed thirty-five percent (35.0%) of Gross Asset Value at any time. For the avoidance of doubt, no Secured Indebtedness other than the Obligations shall be permitted unless the IPO Conditions Satisfaction Date has occurred. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(g) or (h) above shall have any of the Borrowing Base Assets or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as collateral, a borrowing base, asset pool or any similar form of credit support for such Indebtedness, and (ii) none of the Subsidiary Guarantors shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (including, without limitation, pursuant to any conditional or limited guaranty or indemnity agreement creating liability with respect to usual and customary exclusions from the non recourse limitations governing the Non-Recourse Indebtedness of the REIT Guarantor and the Borrower (but not any other Credit Party)Person, including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (or otherwise) other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth Indebtedness described in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor8.1(a), 8.1(b), 8.1(c), 8.1(d), 8.1(e) from incurring Indebtedness which would be prohibited by the terms of this §8.1and 8.1(f).
Appears in 2 contracts
Sources: Credit Agreement (MedEquities Realty Trust, Inc.), Credit Agreement (MedEquities Realty Trust, Inc.)
Restrictions on Indebtedness. The Credit Parties Borrower will not, and will not permit Walden or any of thei▇ ▇▇▇▇ective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders Banks arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iiib) current liabilities of the Credit Parties Borrower, Walden or their respe▇▇▇▇▇ Subsidiaries incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §Section 7.8;
(vd) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which Walden or the period Borrowe▇ ▇▇▇▇l at the time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(vie) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viif) Indebtedness incurred in respect of reverse repurchase agreements having a term of not more than 180 days with respect to any other landownersInvestments described in Section 8.3(d) or (e);
(g) subject to the provisions of Section 9, government or quasiNon-government or entity or similar entity Recourse Indebtedness of Walden and its Subsid▇▇▇▇▇▇ in the ordinary course an aggregate outstanding principal amount not exceeding forty percent (40%) of business in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewithWalden's Consolidated ▇▇▇▇▇ ▇ssets; and
(viiih) Other subject to the provisions of Section 9, secured or unsecured recourse Indebtedness of Walden and its Subsid▇▇▇▇▇▇, provided that (i) the REIT Guarantor and aggregate outstanding principal amount of such Indebtedness (excluding the Obligations) shall not exceed five percent (5%) of Walden's Consolidated ▇▇▇▇▇ ▇ssets, (ii) at the time such Indebtedness is issued the scheduled maturity date of such Indebtedness is not sooner than 180 days after the Maturity Date (after giving effect to any extension of the Maturity Date which may have been requested by the Borrower (but prior to the issuance of such Indebtedness or approved by the Banks, whether or not any other Credit Partythe same has become effective), including and (iii) any covenants or restrictions imposed upon Walden or its Subsidi▇▇▇▇▇ in connection with customary recourse carve-outs such Indebtedness shall not individually or in the aggregate be more restrictive against Walden and environmental indemnifications related its Subsid▇▇▇▇▇▇ than the covenants and restrictions imposed pursuant to Indebtedness incurred by Subsidiaries (this Agreement or the other than Loan Documents, and provided further that neither Walden nor any Subsidiary Guarantor) of its ▇▇▇▇▇diaries shall incur any of the REIT GuarantorIndebtedness described in this Section 8.1(h) unless it shall have provided to the Banks (A) prior written notice of the proposed issuance of such Indebtedness, provided the REIT Guarantor a statement that no Default or Event of Default exists and a certificate that the Borrower remain will be in compliance with its covenants referred to therein after giving effect to such incurrence, (B) evidence reasonably satisfactory to the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries Agent that the Rating Agency has been advised of the REIT Guarantor issuance of such Indebtedness within five (other than Borrower or a Subsidiary Guarantor5) from incurring Indebtedness which would be prohibited by days of such issuance, and (C) upon the terms request of this §8.1)Agent, evidence that the annual rating maintenance fee has been paid to the Rating Agency.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Walden Residential Properties Inc), Revolving Credit Agreement (Walden Residential Properties Inc)
Restrictions on Indebtedness. (a) The Credit Parties will Borrower shall not directly or indirectly create, incur, assume, guarantee permit, suffer to exist or otherwise be or remain liable, contingently or otherwise, become liable with respect to any Indebtedness other than:except for Permitted Indebtedness.
(ib) For purposes of determining compliance with this Section 5.4, if an item of Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness, then the Borrower will be permitted to classify or divide such item of Indebtedness on the date of its incurrence, or later reclassify or redivide all or a portion of such item of Indebtedness, in any manner.
(c) The accrual of interest, the accretion or amortization of original issue discount, and the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms shall not be deemed to be an incurrence of Indebtedness for purposes of this Section 5.4; provided, in each such case, that the amount of any such accrual, accretion or payment is included in Debt Service as accrued.
(d) Notwithstanding anything to the Lenders arising under any contrary herein, the maximum amount of Indebtedness that the Loan Documents and Hedge Obligations Borrower may incur hereunder shall not be deemed to be exceeded solely as a Lender Hedge Provider;result of fluctuations in exchange rates or currency values.
(iie) Unsecured The amount of any Indebtedness provided that outstanding as of any date which is issued with original issue discount will be the Credit Parties remain in compliance with the covenants set forth in §9 after incurring accreted value of such Indebtedness;.
(iiif) current liabilities The amount of the Credit Parties incurred in the ordinary course any Indebtedness outstanding as of business, any date (including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but not incurred through classification or division of Indebtedness for purposes of Section 5.4(b)) shall include (i) the borrowing aggregate amount of moneyIndebtedness that any outstanding preferred stock may be converted into, whether or not the conditions to such conversion have theretofore occurred, (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(iv) Indebtedness in respect of taxesIndebtedness of another Person secured by a Lien on the assets of the specified Person, assessments, governmental charges or levies the least of (A) the Fair Market Value of such asset on the date of determination and claims for labor, materials and supplies to (B) the extent that payment therefor shall not at amount of the time be required to be made in accordance with the provisions of §7.8;
(v) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(vi) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(vii) Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity in the ordinary course of business in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith; and
(viii) Other Indebtedness of the REIT Guarantor other Person; and (iii) the Borrower (but not principal amount of the Indebtedness, in the case of any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1).
Appears in 2 contracts
Sources: Common Terms Agreement (NextDecade Corp.), Common Terms Agreement (NextDecade Corp.)
Restrictions on Indebtedness. The Credit Parties Borrower and the Guarantors will not, and will not permit their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(iib) Unsecured Indebtedness provided that to the Credit Parties remain Lender Hedge Providers in compliance with the covenants set forth in §9 after incurring such Indebtednessrespect of any Hedge Obligations;
(iiic) current liabilities of the Credit Parties Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivd) Indebtedness in respect of (i) taxes, assessments, governmental charges or levies and (ii) claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.87.8 or §8.20, as applicable;
(ve) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;[Intentionally Omitted.]
(vif) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viig) subject to the provisions of §9, Secured Debt, provided that (A) the aggregate amount of Secured Debt shall not exceed forty percent (40%) of Gross Asset Value; and (B) in addition to the limitation set forth in the immediately preceding clause (A), (1) the aggregate amount of Secured Debt that is Recourse Indebtedness incurred (excluding the Obligations and the Hedge Obligations to the extent ever secured hereunder) shall not exceed fifteen percent (15%) of Gross Asset Value, and (2) the aggregate amount of Capitalized Lease Obligations of Parent Company and its Subsidiaries with respect to any other landowners, government or quasi-government or entity or similar entity in of the ordinary course of business in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewithUnencumbered Asset Pool Properties shall not exceed $45,000,000.00;
(h) [Intentionally Omitted.]
(i) [Intentionally Omitted.]
(j) [Intentionally Omitted]; and
(viiik) Other Indebtedness subject to the provisions of §9, Unsecured Debt of the REIT Guarantor or Subsidiaries of the REIT that are not Initial Subsidiary Guarantors or Additional Subsidiary Guarantors (or any direct or indirect owners of such Subsidiaries), provided that the Initial Subsidiary Guarantors and the Borrower Additional Subsidiary Guarantors may incur Unsecured Debt only if it has the Unencumbered Asset Pool Properties as a borrowing base or the documents evidencing same contain a covenant substantially similar to Section 4.12 of the Indenture. Notwithstanding anything in this Agreement to the contrary, (but not i) none of the Indebtedness described in §8.1(g) above shall have any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications of the Unencumbered Asset Pool Properties or any interest therein or equipment related to Indebtedness incurred by Subsidiaries thereto (other than Capitalized Lease Obligations not otherwise prohibited by §8.1(g) above) or any direct or indirect ownership interest in a Subsidiary GuarantorGuarantor that either (A) owns, directly or indirectly, an Unencumbered Asset Pool Property, or (B) directly or indirectly provides services to an Unencumbered Asset Pool Property as collateral, a borrowing base, asset pool or any similar form of credit support for such Indebtedness (provided that the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor Parent Company (other than Borrower or a Subsidiary GuarantorGuarantor that either (A) from incurring owns, directly or indirectly, an Unencumbered Asset Pool Property, or (B) that directly or indirectly provides services to an Unencumbered Asset Pool Property (or any direct or indirect owners of such Subsidiaries)) to incur Non-Recourse Indebtedness which would be prohibited by subject to the terms of this §8.18.1 or recourse to the general credit of the Parent Company or the Borrower), and (ii) neither REIT nor any Subsidiary Guarantor that (A) either owns, directly or indirectly, an Unencumbered Asset Pool Property, or (B) that directly or indirectly provides services to an Unencumbered Asset Pool Property, shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (including, without limitation, pursuant to any conditional or limited guaranty or indemnity agreement creating liability with respect to usual and customary exclusions from the non-recourse limitations governing the Non-Recourse Indebtedness of any Person, or otherwise) other than Indebtedness described in §§8.1(a)-(d), (f) and (k) above and Capitalized Lease Obligations not otherwise prohibited by §8.1(g) above.
Appears in 2 contracts
Sources: Credit Agreement (QualityTech, LP), Credit Agreement (QTS Realty Trust, Inc.)
Restrictions on Indebtedness. The Credit Parties None of the Borrowers will, nor will not permit any of its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iii) current liabilities of the Credit Parties incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(iv) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(v) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(vib) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viic) Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity in the ordinary course of business in connection with the construction or development acquisition of any Real Estatereal or personal property by such Borrower or such Subsidiary or under any Capitalized Lease, includingand any refinancings, without limitationrenewals and replacements thereof which contain terms no more onerous to the Borrowers than the Indebtedness so refinanced, subdivision improvement renewed or replaced, provided that the aggregate principal amount of such Indebtedness (including any such Indebtedness outstanding on the Closing Date) of all of the Borrowers and their Subsidiaries shall not exceed the aggregate amount of $10,000,000 at any one time;
(d) Indebtedness in respect of interest rate agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements swaps or similar arrangements entered into to construct or pay protect the Borrowers from changes in interest rates and not for on-site or off-site improvements speculative purposes;
(e) Indebtedness not otherwise permitted by this § 10.1 existing on the Closing Date and listed and described on Schedule 10.1 hereto and any refinancings thereof not to exceed such original principal amount and on terms and conditions substantially similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewiththereto; and
(viiii) Other Indebtedness evidenced by the Intercompany Canadian Loan Documents in an outstanding aggregate amount not to exceed $20,000,000 at any time during the term of this Credit Agreement, provided that on or following the Closing Date no incurrence of Indebtedness shall be permitted hereunder under the Intercompany Canadian Loan Documents if a Default or Event of Default is then continuing or would result therefrom, and (ii)(A) Indebtedness of the REIT Domestic Borrower or any U.S. Subsidiary Guarantor owing to the Canadian Borrower, (B) Indebtedness of any Subsidiary of the Canadian Borrower that is a Guarantor owing to the Canadian Borrower, and (C) Indebtedness of any U.S. Subsidiary Guarantor owing to the Domestic Borrower (but not or to any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any U.S. Subsidiary Guarantor) of the REIT Guarantor, provided that all such intercompany Indebtedness identified in clauses (A), (B) and (C) herein shall be subordinated to the REIT Guarantor and Obligations on terms satisfactory to the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor Administrative Agent;
(other than g) guarantees by a Borrower or a Subsidiary Guarantorof a Borrower of Indebtedness otherwise permitted under this § 10.1; and
(h) from incurring other unsecured Indebtedness which not otherwise permitted hereunder in an aggregate principal amount of $10,000,000, provided that no Default or Event of Default has occurred and is continuing at the time of the incurrence of such unsecured Indebtedness or would be prohibited by the terms of this §8.1)result after giving effect thereto.
Appears in 2 contracts
Sources: Credit Agreement (McCormick & Schmicks Seafood Restaurants Inc.), Revolving Credit Agreement (McCormick & Schmicks Seafood Restaurants Inc.)
Restrictions on Indebtedness. The Credit Parties will not No Borrower shall create, incur, assume, guarantee assume or be or remain liable, contingently or otherwise, with respect suffer to exist any Indebtedness other thanexcept:
(i) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderObligations;
(ii) Unsecured Indebtedness under the Permitted Commodity Hedging Arrangements; provided that the Credit Parties remain in compliance outstanding amount of all such Indebtedness incurred by the Borrowers, when combined with the covenants set forth cash deposits under Section 7.02(b)(vii) (Liens), does not exceed in §9 after incurring such Indebtednessthe aggregate one million seven hundred fifty thousand Dollars ($1,750,000);
(iii) current liabilities Indebtedness under Interest Rate Protection Agreements; provided, that the sum of the Credit Parties incurred in the ordinary course of business, including but notional amounts under all such Interest Rate Protection Agreements does not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but not incurred through time exceed eighty percent (i80%) of the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and servicesAggregate Commitment;
(iv) Indebtedness incurred in respect the ordinary course for the deferred purchase price of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to property; provided that the extent that payment therefor shall outstanding amount of all such Indebtedness incurred by the Borrowers does not at exceed in the time be required to be made in accordance with the provisions of §7.8aggregate five hundred thousand Dollars ($500,000);
(v) Indebtedness in respect of judgments only arising from intercompany loans and advances owing by (A) a Borrower to the extentGuarantor or (B) the Guarantor to a Borrower or any other Affiliate, for and, in any such case, that is subordinated, pursuant to terms acceptable to the period and for an amount not resulting in an Event of DefaultAdministrative Agent, to the Obligations;
(vi) endorsements for collection, deposit take or negotiation and warranties of products or services, in each case incurred pay contracts entered into by a Borrower in the ordinary course of its business;
(vii) Indebtedness incurred to any Guarantee of obligations of the other landowners, government or quasi-government or entity or similar entity in Borrower not prohibited by this Agreement; provided that the ordinary course outstanding amount of business in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewithall such Guarantees does not exceed two hundred fifty thousand Dollars ($250,000); and
(viii) Other Additional Indebtedness of the REIT Guarantor and Borrowers, to the Borrower (but extent not any other Credit Partyotherwise permitted under this Section 7.02(a), including in connection with customary recourse carve-outs and environmental indemnifications related to ; provided that the outstanding principal amount of all such Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided Borrowers does not exceed in the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor aggregate one million Dollars (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1$1,000,000).
Appears in 2 contracts
Sources: Revolving Credit Agreement (Renewable Energy Group, Inc.), Revolving Credit Agreement (Renewable Energy Group, Inc.)
Restrictions on Indebtedness. The Credit Parties Issuer will not, and will not permit Emmis OpCo or any of its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness, except (1) Permitted Refinancing Indebtedness incurred to refinance the OpCo Credit Agreement and (2) Indebtedness of Emmis OpCo and any of its Subsidiaries to the extent expressly permitted pursuant to §10.1 of the OpCo Credit Agreement (as in effect on the date hereof); provided, however, that notwithstanding the foregoing, no Indebtedness (other than:
than Indebtedness permitted under clauses (a) through (d), (f), (g), (i) Indebtedness to or (j) of §10.1 of the Lenders arising under OpCo Credit Agreement (as in effect on the date hereof)) shall be incurred, assumed, or guaranteed by Emmis OpCo or any of the Loan Documents and Hedge Obligations to a Lender Hedge Provider;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iii) current liabilities its Subsidiaries nor will Emmis OpCo or any of the Credit Parties incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(iv) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment its Subsidiaries become liable therefor shall not unless at the time of such incurrence, assumption or guarantee or at the time Emmis OpCo or its Subsidiaries become liable therefor and after giving effect thereto, the Total Leverage Ratio shall be required to be made less than 3.0:1.0, as evidenced by a certificate of the Issuer substantially in accordance with the provisions form of §7.8;
Exhibit J (vthe “Total Leverage Ratio Certificate”) Indebtedness in respect of judgments only delivered to the extentPurchaser prior to the incurrence of such indebtedness; provided, for however, that Permitted Refinancing Indebtedness may be incurred without regard to the period and for an amount not resulting in an Event of Default;
(vi) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(vii) Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity in the ordinary course of business in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith; and
(viii) Other Indebtedness of the REIT Guarantor and the Borrower (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants Total Leverage Ratio restrictions set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1)herein.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Emmis Communications Corp), Note Purchase Agreement (Emmis Communications Corp)
Restrictions on Indebtedness. The Credit Parties will not Neither the Company nor any of its Subsidiaries shall become or be a guarantor or surety of, or otherwise create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness, or become or be responsible in any manner (whether by agreement to purchase any obligations, stock, assets, goods or services, or to supply or advance any funds, assets, goods or services or otherwise) with respect to any undertaking or Indebtedness of any other Person, or incur any Indebtedness other than:
(ia) Indebtedness to the Lenders Purchasers hereunder or Indebtedness arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge Provider1998 Note Agreement;
(iib) Unsecured Indebtedness provided that incurrence by the Credit Parties remain Company or any of its Subsidiaries of guaranty, suretyship or indemnification obligations in compliance connection with the covenants set forth in §9 after incurring such Indebtedness;
(iii) current liabilities Person’s performance of the Credit Parties incurred services for its respective customers in the ordinary course of its business;
(c) incurrence by the Company or any of its Subsidiaries (other than a Designated LLC) of Indebtedness to the Company or to another of its Subsidiaries (other than a Designated LLC);
(d) other Indebtedness existing on the date hereof and listed and described on Schedule 6B hereto;
(i) purchase money Indebtedness incurred in connection with the acquisition after the Effective Date of any real or personal property or under equipment leases or equipment chattel, including but (ii) existing Indebtedness of any Subsidiary acquired after the Effective Date (the “Acquired Subsidiary”) originally incurred by the Acquired Subsidiary in connection with the lease or acquisition of property or fixed assets used in the business of the Acquired Subsidiary; or with respect to industrial finance bonds issued to finance the purchase of such property or assets; (iii) Indebtedness with respect to Capitalized Leases; (iv) other unsecured Indebtedness; and (v) Indebtedness with respect to Subordinated Debt; provided that in the event that after the Effective Date any Subsidiary of the Company guaranties any Subordinated Debt, the terms of such guaranty shall provide for the release of such guaranty upon the sale of stock or all or substantially all of the assets of such Subsidiary (even if such sale was made in a foreclosure); provided that the aggregate amount of such Indebtedness under this subsection (e) shall not limited exceed .5x EBITDA for the period of four (4) consecutive fiscal quarters most recently ended;
(f) Indebtedness with respect to short term unsecured financing arrangements landfill closure bonds of the Company and its Subsidiaries in an aggregate amount not to exceed $500,000 5,000,000;
(g) Bank Debt in principal amount not to exceed $300,000,000;
(h) Indebtedness to the Designated LLCs evidenced by Designated Intercompany Debentures in an aggregate amount not to exceed $100,000,000; and
(i) incurrence by a Designated LLC of Indebtedness to the Company or any of it Subsidiaries in an aggregate amount not to exceed $100,000,000, whether in the aggregate at any timeform of intercompany payables, but not incurred through advances, notes or debentures, each of which, regardless of form, shall be pledged to the Collateral Agent, the proceeds of which are loaned or contributed as capital to a direct or indirect Subsidiary of such Designated LLC, which Subsidiary is a Guarantor;
(j) Guaranty obligations of the Company with respect to undertakings by ▇▇▇▇▇▇▇ County Disposal, Inc. (or ▇▇▇▇▇▇▇ County Disposal, LLC as successor to ▇▇▇▇▇▇▇ County Disposal, Inc.) under (i) the borrowing of moneyRemarketing and Interest Services Agreement by and between ▇▇▇▇▇▇▇ County Disposal, or Inc., the Company and Wachovia Securities, Inc. and (ii) the obtaining Bond Purchase Agreement by and among Wachovia Securities, Inc., The ▇▇▇▇▇▇▇ County Industrial Facilities and Pollution Control Financing Authority, ▇▇▇▇▇▇▇ County Disposal, Inc. and the Company; provided that if the creation, incurrence, assumption or existence of credit except for credit on any Indebtedness would constitute a default or an open account basis customarily extended and in fact extended in connection with normal purchases event of goods and services;
(iv) default under the Bank Debt, then the creation, incurrence, assumption or existence of such Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(v) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(vi) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(vii) Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity in the ordinary course of business in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith; and
(viii) Other Indebtedness of the REIT Guarantor and the Borrower (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1)permitted hereunder.
Appears in 2 contracts
Sources: Note Purchase and Private Shelf Agreement (Waste Industries Usa Inc), Note Purchase Agreement (Waste Industries Usa Inc)
Restrictions on Indebtedness. The Credit Parties Except as permitted in §8.1(f) below, the Trust will not (other than solely as a result of its status as a general partner of the Borrower) create, incur, assume, guarantee or be or remain liable, contingently or otherwise with respect to any Indebtedness other than the Obligations and any Indebtedness of the Borrower permitted under the terms of this §8.
1. The Borrower will not, and will not permit any of its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders Banks arising under any of the Loan Documents Documents, and Hedge Obligations Indebtedness and obligations in respect of the Interest Rate Contract(s) required pursuant to a Lender Hedge Provider§7.18;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iiib) current liabilities of the Credit Parties Borrower or its Subsidiaries incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(vd) Indebtedness in respect of judgments only to or awards the extent, for the period and for an amount existence of which does not resulting in create an Event of Default;
(vie) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viif) subject to the provisions of §9, (i) Non-recourse Indebtedness of the Borrower or any of its Subsidiaries (other than Subsidiary Guarantors), and (ii) Indebtedness incurred of Borrower, the Trust or any of the Borrower’s Subsidiaries (other than Subsidiary Guarantors) under environmental indemnities and guarantees with respect to customary exceptions to exculpatory language with respect to Non-recourse Indebtedness of Borrower’s Subsidiaries or Unconsolidated Affiliates permitted pursuant to §8.3(i) (it being agreed that any such indemnity or guaranty shall not cause such Non-recourse Indebtedness to be deemed to be Recourse Indebtedness and provided that in the event any claim is made against Borrower, the Trust or any of their respective Subsidiaries with respect to such indemnities, guarantees or exceptions, the amount so claimed shall be considered a recourse liability of such Person);
(g) Indebtedness in respect of reverse repurchase agreements having a term of not more than one hundred eighty (180) days with respect to Investments described in §8.3(d) or (e);
(h) subject to the provisions of §9, other Recourse Indebtedness (whether secured or unsecured) of the Borrower and its Subsidiaries (other than Subsidiary Guarantors) provided that in no event shall such Recourse Indebtedness (excluding the Obligations) in the aggregate exceed twenty percent (20%) of Consolidated Total Adjusted Asset Value (provided that the liability under any completion guaranty shall equal the remaining costs to complete the applicable construction project in excess of construction loan or mezzanine loan proceeds available therefor and any equity deposited or invested for the payment of such costs; and provided further that Indebtedness of Borrower or any of its Subsidiaries with respect to the TIF Guaranty and any other guaranty obligation which the Majority Banks may in their sole discretion approve in writing shall not be included for the purposes of §8.1(h) unless (i) a claim shall have been made against the Trust, Borrower or a Subsidiary of either of them on account of such guaranty or (ii) with respect to any other landownersguaranty obligation which the Majority Banks may in their sole discretion approve in writing to not be included for the purposes of §8.1(h), government or quasi-government or entity or similar entity the occurrence of such other events with respect thereto as the Majority Banks may require in connection with their approval of such obligation); and
(i) Indebtedness in respect of purchase money financing for equipment, computers and vehicles acquired in the ordinary course of the Borrower’s business in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith; and
(viii) Other Indebtedness of the REIT Guarantor and the Borrower (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1)exceeding $5,000,000.00.
Appears in 2 contracts
Sources: Secured Master Loan Agreement (Ramco Gershenson Properties Trust), Secured Master Loan Agreement (Ramco Gershenson Properties Trust)
Restrictions on Indebtedness. The Credit Loan Parties will not create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(i) (x) Indebtedness to the Lenders arising under any of the Loan Documents and Documents, (y) Hedge Obligations to a Lender Hedge Provider, and (z) Indebtedness to any counterparty other than a Lender Hedge Provider with respect to any Derivatives Contract made in the ordinary course of business (and not for speculative purposes);
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iii) current liabilities of the Credit Parties incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(iviii) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(viv) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(viv) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viivi) Indebtedness incurred to any other landowners, government or quasi-quasi- government or entity or similar entity in the ordinary course of business in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith;
(vii) (a) Secured Recourse Indebtedness of Borrower, Parent Guarantor, or IR OpCo as and to the extent not prohibited (and subject to the limitations set forth) in §9.5 and (b) Unsecured Recourse Indebtedness of the Loan Parties as and to the extent not prohibited (and subject to the limitations set forth) in §9.9;
(viii) (a) the Indebtedness set forth on Schedule 8.1 hereto, and any Permitted Refinancing Indebtedness in respect of any such Indebtedness, (b) Indebtedness (including Capitalized Leases) financing the acquisition or replacement of equipment and, limited as to each of the Subsidiary Guarantors, to $75,000.00 per fiscal year, and (c) intercompany Indebtedness of the Loan Parties outstanding from time to time; provided that all such intercompany Indebtedness of any Loan Party owed to any Subsidiary of Parent Guarantor that is not a Loan Party shall be subordinated to the Obligations pursuant to an Intercompany Note;
(ix) Non-Recourse Indebtedness entered into in the ordinary course of business of the Loan Parties (other than a Subsidiary Guarantor) (including, without limitation, any Indebtedness referred to in the proviso to the definition of Secured Recourse Indebtedness);
(x) [Reserved];
(xi) Recourse Indebtedness consisting of the Non-Recourse Exclusions in respect of Non-Recourse Indebtedness permitted to be incurred pursuant to §8.2(ix);
(xii) subject to the provisions of §9.5, Indebtedness of the Loan Parties (other than a Subsidiary Guarantor) in an amount not to exceed $300,000.00 in the aggregate assumed in connection with an Investment not prohibited by this Agreement and any Permitted Refinancing Indebtedness incurred, issued or otherwise obtained to Refinance (in whole or in part) such Indebtedness; provided that, (A) immediately after giving effect to such Indebtedness, no Event of Default exists or is continuing or would result therefrom, and (B) such Indebtedness is and remains solely the obligation of the Person and/or such Person’s subsidiaries that are acquired and such Indebtedness was not incurred in anticipation of such Investment;
(a) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letters of credit, warehouse receipt or similar facilities entered into 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 (b) Indebtedness represented by letters of credit, to the extent such letters of credit support Indebtedness otherwise permitted under this §8.1(xiii);
(xiv) Indebtedness arising from agreements providing for deferred compensation, indemnification, adjustments of purchase price (including “earnouts”) or similar obligations, in each case entered into in connection with any Investments not prohibited by this Agreement;
(xv) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations incurred in the ordinary course of business and not in connection with the borrowing of money;
(xvi) Indebtedness consisting of obligations to pay insurance premiums arising in the ordinary course of business and not in connection with the borrowing of money;
(xvii) Indebtedness representing deferred compensation to employees, consultants or independent contractors of, Parent Guarantor and its Subsidiaries incurred in the ordinary course of business or in connection with any Investments not prohibited by this Agreement;
(xviii) obligations, under cash management agreements, cash management services and other Indebtedness in respect of netting services, automatic clearing house arrangements, employees’ credit or purchase cards, overdraft protections and similar arrangements in each case incurred in the ordinary course of business;
(xix) Indebtedness comprising take or pay obligations contained in supply agreements entered into the ordinary course of business; and
(viiixx) Other Indebtedness of the REIT Guarantor and the Borrower all customary premiums (but not any other Credit Partyif any), interest (including post-petition and capitalized interest), fees, expenses, charges and additional or contingent interest on obligations described in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantoreach of §8.1(i) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in through §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor8.1(xix) from incurring Indebtedness which would be prohibited by the terms of this §8.1)above.
Appears in 2 contracts
Sources: Credit Agreement (Independence Realty Trust, Inc.), Credit Agreement (Independence Realty Trust, Inc.)
Restrictions on Indebtedness. The Credit Parties will not create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(i) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge Provider;
(ii) Unsecured Indebtedness arising under any Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iii) current liabilities of the Credit Parties incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(iv) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(v) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(vi) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(vii) Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity in the ordinary course of business in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith; and
(viii) Other Indebtedness of the REIT Guarantor and the Borrower (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1).
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Plymouth Industrial REIT, Inc.), Term Loan Credit Agreement (Plymouth Industrial REIT, Inc.)
Restrictions on Indebtedness. The Credit Parties Borrowers will not, and will not permit the Guarantor to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(i) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge Provider;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iii) current liabilities of the Credit Parties Borrowers incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(iviii) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(viv) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(viv) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viivi) Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity in the ordinary course of business in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith;
(vii) Indebtedness of the Guarantor under carve-out guaranties and environmental indemnifications on first mortgage or other property related loans;
(viii) Indebtedness of the Guarantor and certain of its Subsidiaries (but not any Subsidiaries that are Credit Parties) under the Equity Line; and
(viiiix) Other The Guarantor will not incur any Indebtedness other than (i) Indebtedness under guaranties of the REIT Guarantor and the Borrower (but not any other Credit Party), including in connection with customary recourse consisting of carve-outs out guaranties and environmental indemnifications on first mortgage or other property related loans; (ii) Indebtedness under the Guaranty; and (iii) other Indebtedness (which shall include the amounts outstanding under the Equity Line and recourse guaranties related to Indebtedness incurred by Subsidiaries of Subsidiaries) in an aggregate amount at any one time not in excess of ten percent (other than 10%) of Total Asset Value; provided that such limit in this subclause (iii) shall increase to fifteen percent (15%) of Total Asset Value from and after the date when Guarantor shall have delivered financial statements described in §7.4(a) or (b) evidencing Total Asset Value of $1,500,000,000 or more. Notwithstanding anything in this Agreement to the contrary, none of the Indebtedness described in §8.1 above shall have any of the Collateral Properties or any interest therein or any direct ownership interest in any Subsidiary Guarantor) Credit Party as collateral, a borrowing base, asset pool or any similar form of credit support for such Indebtedness (provided that the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary GuarantorBorrower) from incurring to incur Indebtedness which would be prohibited by the terms of this §8.1).
Appears in 1 contract
Sources: Credit Agreement (Bluerock Residential Growth REIT, Inc.)
Restrictions on Indebtedness. The Credit Parties Borrowers will not, and will not permit any of their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(iib) Unsecured Indebtedness provided that to the Credit Parties remain Lender Hedge Providers in compliance with the covenants set forth in §9 after incurring such Indebtednessrespect of any Hedge Obligations;
(iiic) current liabilities of the Credit Parties Borrowers or their respective Subsidiaries incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivd) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §Section 7.8;
(ve) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of DefaultDefault under Section 12.1(l);
(vif) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and
(g) subject to the provisions of Section 9, Indebtedness of Borrowers in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes;
(viih) [Intentionally Omitted];
(i) [Intentionally Omitted];
(j) Indebtedness incurred to any other landownersacquire furniture, government fixtures or quasi-government equipment to which a Borrower or entity or similar entity a Subsidiary thereof is a party in the ordinary course of business in connection with an aggregate outstanding amount not to exceed $12,000,000.00 at any time (an “FF&E Lease”), provided, however, that (i) the construction or development term of any Real Estatesuch Indebtedness cannot exceed five (5) years, including(ii) such Indebtedness shall amortize in a manner consistent with Borrowers’ current financings of this type, without limitation(iii) such Indebtedness cannot be reborrowed or refinanced and (iv) such Indebtedness is subject to an Intercreditor Agreement, subdivision improvement agreementsa subordination, development agreementsnon-disturbance and attornment agreement and such other documents or agreements reasonably requested by Administrative Agent;
(k) Indebtedness (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) owed to any Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to Borrowers or any Subsidiary thereof, pursuant to reimbursement agreementsor indemnification obligations to such Person, infrastructure development agreementsin each case in the ordinary course of business or consistent with past practice or industry practices;
(l) Indebtedness in respect of performance bonds, agreements to construct or pay for on-site or off-site improvements bid bonds, appeal bonds, surety bonds and completion guarantees and similar agreements obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(m) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services or netting services, in each case incurred in the ordinary course of business business;
(n) Indebtedness representing deferred compensation to employees, consultants or independent contractors of Borrowers (or, to the extent such work is done for Borrowers or their respective Subsidiaries, any direct or indirect parent thereof) or any Subsidiary thereof incurred in connection with the development ordinary course of Real Estate or construction business;
(o) Indebtedness consisting of infrastructure the financing of insurance premiums in connection therewiththe ordinary course of business; and
(viiip) Other obligations in respect of cash management agreements. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in Sections 8.1(i) or 8.1(j) shall have any of the Collateral Properties, Villa Units, any other Collateral or any interest therein or any direct or indirect ownership interest in any Borrower or any Subsidiary thereof as collateral, a borrowing base, asset pool or any similar form of credit support for such Indebtedness, (ii) only the Borrower owning such Real Estate or other applicable asset, if such Indebtedness is secured as expressly permitted by Section 8.2, shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to, any Indebtedness (including pursuant to any conditional or limited guaranty or indemnity agreement creating liability with respect to usual and customary exclusions from the non-recourse limitations governing the Non-Recourse Indebtedness of the REIT Guarantor and the Borrower (but not any Person, or otherwise) other Credit Partythan Indebtedness described in Sections 8.1(a), including 8.1(c), 8.1(d), 8.1(e), 8.1(f) and 8.1(k) through 8.1(p), and (iii) in connection with customary recourse carve-outs and environmental indemnifications related to no event shall any Borrower guarantee, or otherwise be contingently liable for, any Indebtedness incurred by Subsidiaries (or other than obligation of any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall Person that is not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1)Borrower.
Appears in 1 contract
Sources: Senior Secured Credit Agreement (Griffin-American Healthcare REIT III, Inc.)
Restrictions on Indebtedness. The Credit Parties will not Neither the Borrower nor any of its Subsidiaries shall become or be a guarantor or surety of, or otherwise create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness, or become or be responsible in any manner (whether by agreement to purchase any obligations, stock, assets, goods or services, or to supply or advance any funds, assets, goods or services or otherwise) with respect to any Indebtedness of any other Person (other than the Borrower or any of its Subsidiaries), or incur any Indebtedness other than:
(a) Indebtedness arising under this Agreement or the other Loan Documents;
(i) Indebtedness incurred by the Borrower or any Subsidiary with respect to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge Provider;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iii) current liabilities of the Credit Parties suretyship or performance bond incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but not incurred through (i) the borrowing of money, or its business and undrawn landfill closure bonds;
(ii) Guarantees of any of its Subsidiaries' obligations to governmental authorities in lieu of the obtaining posting of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and servicesany landfill closure bonds;
(ivc) Unsecured Indebtedness in respect of taxesthe Borrower (and any guarantee thereof by the Guarantor), assessmentsincluding commercial paper and the Five Year Revolving Credit Facility, governmental charges which is pari passu or levies and claims for labor, materials and supplies subordinated to the extent Obligations; provided that payment therefor shall there does not exist a Default or Event of Default at the time of the incurrence of such Indebtedness and no Default or Event of Default would be required to be made in accordance with created by the provisions incurrence of §7.8such Indebtedness;
(vd) Indebtedness of the Guarantor and the Borrower's Subsidiaries listed in respect Schedule 8.1(d) and any extension, renewal or refinancing by the Guarantor or such Subsidiary of judgments only such Indebtedness, provided that the terms and conditions of any such extension, renewal or refinancing are substantially the same as the terms and conditions in effect on the Effective Date, or are more favorable to the extent, for the period and for an amount not resulting in an Event of Default;
(vi) endorsements for collection, deposit Guarantor or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(vii) Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity in the ordinary course of business in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewithsuch Subsidiary; and
(viiii) Other Indebtedness of the REIT Guarantor and the Borrower (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Borrower's Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor), (ii) secured Indebtedness of the Borrower, (iii) Indebtedness with respect to drawn landfill closure bonds, and (iv) Indebtedness with respect to Permitted Receivables Transactions; provided that the REIT Guarantor and the Borrower remain aggregate amount of all such Indebtedness in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing this Section 8.1(e) shall not preclude Subsidiaries exceed 15% of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1)Consolidated Tangible Assets at any time.
Appears in 1 contract
Restrictions on Indebtedness. The Credit Parties will Borrower shall not, and shall not permit any other Loan Party to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iiib) current liabilities of the Credit Loan Parties incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §§ 7.8;
(vd) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(vie) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viif) Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity in the ordinary course of business Borrower in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements completion and similar agreements incurred guaranties in an aggregate amount at any one time not in excess of the ordinary course greater of business in connection with (i) $175,000,000 or (ii) fifteen percent (15%) of the development of Real Estate or construction of infrastructure in connection therewith; andGross Asset Value;
(viiig) Other Indebtedness of the Borrower, REIT Guarantor and the Borrower (but not or any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by of their Subsidiaries (other than any Subsidiary Guarantor) ), provided that none of such Persons shall incur any of the REIT GuarantorIndebtedness described in this § 8.1(g) unless it shall have provided to the Agent prior written notice of the proposed incurrence of such Indebtedness, provided a statement that the REIT Guarantor borrowing will not cause a Default or Event of Default and the Borrower remain a Compliance Certificate demonstrating that Loan Parties will be in compliance with the covenants set forth in §§9.1 through 9.5 referred to therein after incurring giving effect to the incurrence of such Indebtedness. The foregoing shall not preclude Subsidiaries of ;
(h) Derivatives Contracts (including Approved Derivatives Contracts) reasonably acceptable to the REIT Guarantor Agent sufficient to ensure Loan Parties’ compliance with § 9.7;
(other than Borrower or a Subsidiary Guarantori) from incurring Indebtedness which would be prohibited by the terms of this §8.1).Revolver Loans; and
Appears in 1 contract
Restrictions on Indebtedness. The Credit Parties will Grand Parent and the Borrower ---------------------------- shall not, and shall not permit any other Omnipoint Entity to, create, incur, assume, guarantee suffer to exist or be otherwise become or remain liable, contingently directly or otherwise, indirectly liable with respect to to, any Indebtedness Indebtedness, other than:
(i) Indebtedness to hereunder and under the Lenders arising under any of the other Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(ii) Unsecured Indebtedness provided outstanding on the Closing Date and, with respect to the Omnipoint Loan Parties, set forth on Schedule 7.1 hereto (on a pro forma basis, after giving effect to the refinancing, retirement and payment of amounts outstanding under the Existing Loan Agreement);
(iii) Indebtedness permitted under Section 7.3;
(iv) Additional Loans hereunder as permitted pursuant to Section 2.1(b);
(v) Indebtedness of Grand Parent that is (i) unsecured or secured solely by the assets of any one or more Non-Party Subsidiaries, (ii) not guaranteed or supported by the Borrower or any Guarantor (other than limited recourse guaranties by OHI secured by Liens permitted pursuant to Section 7.2(x)), (iii) on terms and conditions at least as favorable as then prevailing "market terms" and (iv) the proceeds of which are used in Grand Parent's and its Subsidiaries' telecommunications business.
(vi) Provided that the Credit Parties remain Administrative Agent has received a certificate of the chief or principal accounting or financial officer of the Borrower to the effect that no Default is in compliance existence or would result therefrom, Indebtedness of the Borrower (including vendor financing) secured on a pari passu basis with the covenants Loans and Senior Secured Notes (pursuant to an intercreditor arrangement to be negotiated in good faith and without unreasonable delay with the Secured Creditors, providing sharing of the proceeds of collateral on a pro rata basis similar to the Intercreditor Agreement, which arrangement shall be satisfactory to the Administrative Agent and the Required Secured Creditors);
(vii) So long as no Default is in existence or would result therefrom, (A) Indebtedness secured in accordance with Section 7.2(vi), (vii) and (viii), as applicable, incurred in the acquisition of Real Estate capital lease obligations and (B) other purchase money financing, in an aggregate amount (including any refinancing thereof pursuant to clause (x) below) not to exceed $20,000,000;
(viii) Intercompany Indebtedness of the Guarantors on the terms and conditions set forth in §9 after incurring herein;
(ix) Indebtedness of any Non-Party Subsidiary, so long as such Indebtedness is not secured by any of the Collateral, and neither the Borrower nor any Guarantor has any Contingent Obligations with respect to such Indebtedness;
(x) Indebtedness providing for the refinance, refunding, renewal or replacement of Indebtedness incurred pursuant to clauses (v), (vi) and (vii) above (so long as such Indebtedness could have been incurred under such clauses (v), (vi) and (vii); provided that (i) any such Indebtedness does not exceed the amount so refinanced, refunded, renewed or replaced plus the amount of any premium, accrued interest, fees and other related expenses incurred in connection with the consummation of any such Indebtedness, (ii) the maturity date of such Indebtedness is no earlier than the maturity date of such original Indebtedness; (iii) current liabilities no collateral is used to secure such Indebtedness other than the collateral pledged in connection with such original Indebtedness; and (iv) if such refinancing, refunding, renewal or replacement applies to the Borrower's FCC Indebtedness and is incurred by a lender other than the FCC, such refinancing, refunding, renewal or replacement and any Liens in connection therewith shall not be senior in any respect to the position of the Credit Parties incurred Secured Creditors.
(xi) Indebtedness under the Note Purchase Agreement; and
(xii) Indebtedness in respect of performance, surety or appeal bonds provided in the ordinary course of business. For purposes of determining compliance with this Section 7.1, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any timeevent that an item of Indebtedness meets the criteria of more than one of the types of Indebtedness described in the above clauses, but not incurred through (i) the borrowing Borrower, in its sole discretion, shall classify such item of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended Indebtedness and in fact extended in connection with normal purchases of goods and services;
(iv) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time only be required to be made in accordance with include the provisions amount and type of §7.8;
(v) such Indebtedness in respect one of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(vi) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(vii) Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity in the ordinary course of business in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith; and
(viii) Other Indebtedness of the REIT Guarantor and the Borrower (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1)clauses.
Appears in 1 contract
Sources: Loan Agreement (Omnipoint Corp \De\)
Restrictions on Indebtedness. The Credit Parties CAI will not, and will not permit any of its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iii) current liabilities of the Credit Parties incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivb) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.88.8;
(vc) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which any Borrower or such Subsidiary shall at the period time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(vid) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viie) Indebtedness (in addition to similar Indebtedness permitted under clause (g) hereof) incurred in connection with the acquisition or lease after the Sixth Amendment Effective Date of any real or personal property by a Borrower or such Subsidiary or under any Capitalized Leases, provided that (i) the aggregate principal amount of such Indebtedness of CAI and its Subsidiaries for non-income producing properties shall not exceed $20,000,000 outstanding at any one time, (ii) such Indebtedness secured by income producing properties complies with the provisions of clause (l) hereof and (iii) the principal amount of such Indebtedness secured by or relating to the lease of any particular property shall not exceed 100% of the purchase price of such property;
(f) Indebtedness existing on the Sixth Amendment Effective Date and listed and described on Schedule 9.1 hereto;
(g) any renewal or refinancing of any Indebtedness permitted under this §9.1; provided that any such refinancing or renewal does not independently violate any restriction, basket, limitation or other landownersprovision of this §9;
(h) Indebtedness of CAI and its Subsidiaries consisting of short-term trade credit extended to CAI or such Subsidiary in the ordinary course of such Person's business in connection with the acquisition of Containers and other equipment; provided that such Indebtedness shall not be in existence for more than 365 days after the occurrence of the transaction giving rise thereto;
(i) Indebtedness in respect of Interest Rate Protection Agreements;
(j) Indebtedness of a Subsidiary of the Borrowers to the Borrowers consisting of Investments permitted by §9.3(e);
(k) Indebtedness consisting of obligations (contingent or otherwise) of CAI or any Subsidiary existing or arising under any Swap Contract, government provided that (i) such obligations are (or quasi-government or entity or similar entity 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 purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(l) other Indebtedness consisting of either;
(i) Indebtedness that is unsecured;
(ii) Indebtedness that is secured (other than CAI Rail Indebtedness); provided that any such secured Indebtedness either: (x) is secured by assets that are not commingled with the Collateral; (y) if secured by assets that are commingled with the Collateral, is subject to the Intercreditor Agreement; or (z) consists of Indebtedness of Excluded Subsidiaries;
(iii) CAI Rail Indebtedness, provided that such Indebtedness complies with the provisions of §9.13; or
(iv) other secured Indebtedness not to exceed $60,000,000 in the aggregate; provided that both before and immediately after any such Indebtedness is incurred, no Default or Event of Default shall have occurred and be continuing and, with respect to Indebtedness described in §9.1(l)(i), §9.1(l)(ii), and §9.1(l)(iv), the proceeds of such Indebtedness are used solely for (A) repayments of Revolving Credit Loans pursuant to §3.3, (B) the acquisition of assets and fees, costs and expenses incurred in connection with the construction acquisition of assets or development (C) for the refinancing of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements such Indebtedness;
(m) Indebtedness incurred in the ordinary course of business by a Securitization Entity in connection with a Permitted Securitization; provided that the development of Real Estate or construction of infrastructure CFE Trustee in connection therewithsuch Permitted Securitization shall have joined the Intercreditor Agreement; and
(viiin) Other Indebtedness of the REIT Guarantor and the Borrower (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to unsecured Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) CAI consisting of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such one or more guaranties of CAI Rail Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1).
Appears in 1 contract
Sources: Revolving Credit Agreement (CAI International, Inc.)
Restrictions on Indebtedness. The Credit Parties Borrower will not, and will not permit REIT or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iiib) current liabilities of the Credit Parties Borrower or its respective Subsidiaries incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(vd) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(vie) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viif) subject to the provisions of §9, Secured Recourse Indebtedness incurred of Borrower and its Subsidiaries, provided that, until the date that Agent first receives written notice from REIT or Borrower that Borrower has obtained an Investment Grade Rating, the aggregate amount of such Secured Recourse Indebtedness shall not exceed fifteen percent (15%) of Gross Asset Value;
(g) subject to the provisions of §9, Consolidated Secured Indebtedness of Borrower and its Subsidiaries, provided that the aggregate amount of such Consolidated Secured Indebtedness shall not exceed forty percent (40%) of Gross Asset Value;
(h) subject to the provisions of §9, Unsecured Indebtedness of Borrower and its Subsidiaries and of REIT and General Partner;
(i) (i) indebtedness of the REIT, Borrower or any other landowners, government or quasi-government or entity or similar entity Subsidiary in the ordinary course form of business purchase price adjustments, earn-outs or other arrangements representing acquisition consideration incurred in connection with any acquisition permitted by this Agreement or other Investment permitted by §8.3 other than Indebtedness for borrowed money, provided that, solely with respect to any Unencumbered Property Subsidiary, any Subsidiary of Borrower owning an interest in such Unencumbered Property Subsidiary and the construction or development REIT, such Indebtedness is unsecured; and (ii) Indebtedness owed in respect of any Real Estateoverdrafts and related liabilities arising from treasury, depository and Cash Management Services or in connection with any automated clearing-house transfers of funds; provided that such Indebtedness shall be repaid in full within five Business Days of the incurrence thereof; and
(j) Unsecured Indebtedness between or among any of the REIT, the Borrower and their respective Subsidiaries, provided that any such Indebtedness to which Borrower or any Guarantor shall be an obligor shall be subordinated to the Obligations in a manner reasonably acceptable to the Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(f) or (g) above shall be secured by any asset included in the calculation of the Unencumbered Asset Value or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor or Unencumbered Property Subsidiary owning such an asset as collateral and (ii) REIT and General Partner shall not create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements pursuant to construct any conditional or pay for onlimited guaranty or indemnity agreement creating liability with respect to usual and customary exclusions from the non-site or offrecourse limitations governing the Non-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith; and
(viii) Other Recourse Indebtedness of the REIT Guarantor and the Borrower (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (Person) other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth Indebtedness described in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor 8.1(a)-(e), (other than Borrower or a Subsidiary Guarantorh) from incurring Indebtedness which would be prohibited by the terms of this §8.1)and (j) above.
Appears in 1 contract
Sources: Credit Agreement (CyrusOne Inc.)
Restrictions on Indebtedness. The Credit Parties Borrowers will not, and will not permit any of their Restricted Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders Lenders, the Issuing Lender and the Administrative Agent arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iii) current liabilities of the Credit Parties incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivb) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8Section 9.8;
(vc) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which any Borrower or any of their Restricted Subsidiaries shall at the period time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(vid) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viie) Indebtedness of any of the Borrowers or any of their Restricted Subsidiaries to any of the Borrowers or any of their other Restricted Subsidiaries consisting of rights of reimbursement, contribution, subrogation and the like in connection with the joint and several obligations of the Borrowers and their Restricted Subsidiaries under the Loan Documents;
(f) Indebtedness incurred (other than under this Credit Agreement) or assumed in connection with the acquisition after the date hereof of any real or personal property by the Borrowers or their Restricted Subsidiaries (including Indebtedness in respect of Capitalized Leases), provided that the aggregate principal amount of such Indebtedness of (i) the US Borrower and its Restricted Subsidiaries shall not exceed the amount of $35,000,000 at any one time and (ii) GWCA and its Restricted Subsidiaries shall not exceed the aggregate amount of $10,000,000 at any one time;
(g) Indebtedness existing on the date hereof and listed and described on Schedule 10.1 hereto including any extensions or refinancings thereof on substantially similar terms as the Indebtedness being refinanced and provided there is no increase in the amount thereof;
(h) Indebtedness of (i) the US Borrower to any of the US Guarantors or any of the US Guarantors to the US Borrower or any of the other landownersUS Guarantors or (ii) the Canadian Borrower to any of the Canadian Guarantors or any of the Canadian Guarantors to the Canadian Borrower or any of the other Canadian Guarantors or (iii) (A) the US Borrower to the Canadian Borrower or any of the Canadian Guarantors, government (B) the Canadian Borrower to the US Borrower or quasi-government any of the US Guarantors, or entity (C) any of the Canadian Guarantors to the US Borrower or any of the US Guarantors, or (D) any of the US Guarantors to the Canadian Borrower or any of the Canadian Guarantors, provided that the aggregate amount of Indebtedness under this clause (iii) together with Investments permitted under Section 10.3(e)(ii) shall not exceed $15,000,000 at any one time;
(i) Indebtedness of the Borrowers with respect to Hedging Agreements provided that such Hedging Agreements are in form and substance acceptable to the Administrative Agent;
(j) Indebtedness in respect of performance, surety, statutory, insurance, appeal or similar entity bonds obtained in the ordinary course of business business;
(k) Indebtedness of the Borrowers or any of their Restricted Subsidiaries in respect of guaranties of obligations in connection with Permitted Acquisitions and other Investments permitted by Section 10.3(h) and for the construction or development operation of any Real Estateof their Restricted Subsidiaries (in each case, includingto the extent the underlying Indebtedness with respect thereto is otherwise permitted under this Section 10.1), without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements not to construct or pay exceed $20,000,000 in aggregate for on-site or off-site improvements and similar agreements incurred all such permitted at any time;
(l) Indebtedness of the US Borrower with respect to the put option of IFC pursuant to the IFC Documents;
(m) Indebtedness with respect to the US Borrower's $8,000,000 Letter of Credit in favor of CFCM until Technical Completion (as defined in the ordinary course IFC Documents);
(n) Indebtedness with respect to the US Borrower's $7,500,000 guarantee of business CFCM's obligations to IFC until Financial Completion (as defined in connection the IFC Documents);
(o) Indebtedness with respect to the development of Real Estate or construction of infrastructure in connection therewithSenior Notes, not to exceed $75,000,000 at any one time; and
(viiip) Other Indebtedness of not included in the REIT Guarantor and the Borrower (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms provisions of this §8.1)Section 10.1 not to exceed $20,000,000 in the aggregate at any time outstanding.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Genesee & Wyoming Inc)
Restrictions on Indebtedness. The Credit Parties Borrower will not, and will not permit any of its Subsidiaries to, create, incur, assume, guarantee or be become or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iiib) current liabilities of the Credit Parties Borrower or such Subsidiary incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but business not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.85.8 hereof;
(vd) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the period Borrower or such Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(vie) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viif) Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity in respect of documentary letters of credit issued in the ordinary course of business business;
(g) Indebtedness of the Borrower in respect of interest rate protection arrangements and exchange rate protection arrangements;
(h) Indebtedness existing on the Effective Date and listed and described on Schedule 6.1 hereto or any refinancing thereof on substantially similar terms as the Indebtedness being refinanced;
(i) Subordinated Debt;
(j) obligations under Capitalized Leases;
(k) Indebtedness in respect of intercompany loans, guaranties and, so long as no Default or Event of Default shall have occurred and be continuing at the time such Indebtedness is incurred, other Investments and contingent obligations to make Investments, (i) from the Borrower to any of its Subsidiaries or of any of its Subsidiaries’ obligations or (ii) between Subsidiaries of the Borrower or of any of the Borrower’s Subsidiaries’ obligations, or (iii) from any Subsidiary of the Borrower to the Borrower or of any of the Borrower’s obligations;
(l) Indebtedness incurred in connection with the construction or development acquisition after the Effective Date of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct real or pay for on-site personal property by the Borrower or off-site improvements and similar agreements incurred in any Subsidiary of the ordinary course of business in connection with the development of Borrower as contemplated by §6.2(ix) hereof;
(m) Indebtedness secured by a lien on Real Estate of the Borrower or construction its Subsidiaries; provided that the aggregate amount of infrastructure Indebtedness permitted pursuant to this §6.1(m) shall not, at any time, exceed the fair market value of the Real Estate securing such Indebtedness;
(n) other Indebtedness of the Borrower and its Subsidiaries (whether or not such Subsidiaries are Guarantors), provided that (i) with respect to Indebtedness incurred by the Borrower or a Guarantor, such Indebtedness contains covenants that are no more restrictive on the Borrower or such Guarantor than the covenants contained in connection therewiththis Credit Agreement and (ii) immediately after such incurrence of Indebtedness, and after giving effect thereto on a pro forma basis, no Default or Event of Default shall then exist;
(o) Indebtedness consisting of Investments permitted under §6.3(m) hereof;
(p) Indebtedness payable at the election of the Borrower by the issuance of the Borrower’s Capital Stock;
(q) Indebtedness of the Borrower and its Subsidiaries in respect of receivables securitization transactions or other financing of any special purpose receivables Subsidiary of the Borrower, entered into or guaranteed by the Borrower and/or any of its Subsidiaries; provided that the aggregate amount of all such Indebtedness shall not exceed $300,000,000 outstanding at any time; and
(viiir) Other Indebtedness of the REIT Guarantor Borrower and its Subsidiaries arising under the Existing Credit Agreement and any of the other “Loan Documents” as such term is defined therein; provided that the aggregate amount of all such Indebtedness shall not exceed $1,000,000,000 outstanding at any time. Notwithstanding the foregoing, at no time shall the aggregate amount of Indebtedness of the Borrower and its Subsidiaries consisting of guaranties and other Contingent Liabilities (but not any other Credit Party)excluding (i) Indebtedness permitted pursuant to §6.1 hereof to the extent such Indebtedness (or if such Indebtedness is a Contingent Liability of the Borrower and/or its Subsidiaries, including the underlying Indebtedness relating to such Contingent Liability) is included in connection with customary recourse carve-outs the calculation of Consolidated Total Funded Debt and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantorii) obligations in respect of documentary letters of credit) exceed, in the aggregate, fifteen percent (15%) of the REIT Guarantor, provided the REIT Guarantor and Stockholders’ Equity of the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring at such Indebtednesstime. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms For purposes of this §8.1)6.1, the amount of Contingent Liabilities in respect of interest rate protection arrangements and exchange rate protection arrangements permitted under §6.1(g) hereof at any time shall be the net liability of the Borrower and its Subsidiaries under such arrangements at such time, calculated on a basis satisfactory to the Administrative Agent in accordance with accepted practice.
Appears in 1 contract
Sources: Credit Agreement (Staples Inc)
Restrictions on Indebtedness. The Credit Parties Borrower will not, and will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(iib) Unsecured Indebtedness provided that to the Credit Parties remain Lender Hedge Providers in compliance with the covenants set forth in §9 after incurring such Indebtednessrespect of any Hedge Obligations;
(iiic) current liabilities of the Credit Parties Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivd) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(ve) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of a Default;
(vif) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;; and
(viig) subject to the provisions of §9, Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity of the Borrower in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes; and
(h) subject to the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Borrowing Base Assets or interest therein) and related assets. Notwithstanding anything in connection this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) above shall have any of the Borrowing Base Assets or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as collateral, a borrowing base, asset pool or any similar form of credit support for such Indebtedness, (ii) none of the Guarantors shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with the construction or development of respect to any Real Estate, Indebtedness (including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements pursuant to construct any conditional or pay for onlimited guaranty or indemnity agreement creating liability with respect to usual and customary exclusions from the non recourse limitations governing the Non-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith; and
(viii) Other Recourse Indebtedness of the REIT Guarantor and the Borrower (but not any Person, or otherwise) other Credit Partythan Indebtedness described in §§8.1(a), including 8.1(c), 8.1(d), 8.1(e) and 8.1(f), (iii) in connection with customary recourse carve-outs no event shall the aggregate amount of Indebtedness of REIT and environmental indemnifications related its Subsidiaries that is not subject to a Derivatives Contract for the purpose of hedging the exposure of REIT and its Subsidiaries to fluctuations in interest rates exceed an amount equal to twenty percent (20%) of the Consolidated Total Indebtedness incurred by and (iv) in no event shall the aggregate amount of Indebtedness of REIT and its Subsidiaries consisting of completion or other guarantees (other than any Subsidiary Guarantorguarantees of the Obligations), whether incurred, directly, indirectly, or otherwise, exceed an amount equal to ten percent (10%) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1)Consolidated Total Assets.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (American Realty Capital Healthcare Trust Inc)
Restrictions on Indebtedness. The Credit Parties Borrower will not, and will not permit any of its Subsidiaries to, create, incur, assume, guarantee or be become or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iii) current liabilities of the Credit Parties incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(iv) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(v) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(vib) endorsements for collection, deposit or negotiation negotiation, self-insurance obligations and warranties of products or services, in each case incurred in the ordinary course of business;
(viic) Indebtedness incurred to any other landownersin respect of letters of credit, government or quasi-government or entity or bankers’ acceptances, bank guaranties, surety bonds and similar entity instruments issued in the ordinary course of business business;
(d) Indebtedness of the Borrower or any Subsidiary (other than any Domestic Subsidiary) in respect of Swap Contracts; provided that such Swap Contracts are (or were) entered into by the Borrower or such Subsidiary for the purpose of mitigating risks associated with fluctuations in interest rates, commodity prices or foreign exchange rates and not for speculative purposes;
(e) Indebtedness existing on the Closing Date and listed and described on Schedule 7.1 hereto or any refinancing thereof on substantially similar terms as the Indebtedness being refinanced;
(f) Subordinated Debt;
(g) obligations under Capitalized Leases;
(h) Indebtedness in respect of intercompany loans, guaranties and, so long as no Default or Event of Default shall have occurred and be continuing at the time such Indebtedness is incurred, other Investments and contingent obligations to make Investments, (i) from the Borrower to any of its Subsidiaries or of any of its Subsidiaries’ obligations, (ii) between Subsidiaries of the Borrower or of any of the Borrower’s Subsidiaries’ obligations, or (iii) from any Subsidiary of the Borrower to the Borrower or of any of the Borrower’s obligations;
(i) Indebtedness incurred in connection with the construction or development acquisition after the Closing Date of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct real or pay for on-site personal property by the Borrower or off-site improvements and similar agreements incurred in any Subsidiary of the ordinary course of business in connection with the development of Borrower as contemplated by §7.2(ix) hereof;
(j) Indebtedness secured by a lien on Real Estate of the Borrower or construction its Subsidiaries; provided that the aggregate amount of infrastructure in connection therewith; andIndebtedness permitted pursuant to this §7.1(j) shall not, at any time, exceed the fair market value of the Real Estate securing such Indebtedness;
(viiik) Other other Indebtedness of the REIT Guarantor Borrower, provided that immediately after such incurrence of Indebtedness, and after giving effect thereto on a pro forma basis, no Default or Event of Default shall then exist;
(l) other Indebtedness of the Borrower Borrower’s Subsidiaries, provided that immediately after such incurrence of Indebtedness, and after giving effect thereto on a pro forma basis, no Default or Event of Default shall then exist, and provided, further, that the aggregate amount of such Indebtedness (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantorwithout duplication) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Domestic Subsidiaries of the REIT Guarantor Borrower permitted under this clause (other than o) shall not exceed 15% of the Stockholders’ Equity of the Borrower or a Subsidiary Guarantorat the time such Indebtedness is incurred;
(m) from incurring Indebtedness which would be prohibited consisting of Investments permitted under §7.3(m) hereof;
(n) Indebtedness payable at the election of the Borrower by the terms issuance of this §8.1).the Borrower’s Capital Stock;
Appears in 1 contract
Sources: Credit Agreement (Staples Inc)
Restrictions on Indebtedness. The Credit Parties None of the Borrowers will, nor will not permit any of its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders Lenders, the Agents and the Issuing Bank arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iii) current liabilities of the Credit Parties incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(iv) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(v) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(vib) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viic) Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity in the ordinary course of business in connection with the construction or development acquisition after the Closing Date of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct Property (and in any event not more than ninety (90) days from the date of such acquisition) by such Borrower or pay such Subsidiary as contemplated by ss. 9.2(ix);
(d) obligations under or guaranties of Capitalized Leases;
(e) Indebtedness in respect of Hedging Agreements entered into for on-site hedging purposes only and not for speculation;
(f) Indebtedness existing on the Closing Date and listed and described on Schedule 9.1 hereto including any extensions or off-site improvements refinancings thereof on substantially similar terms as the Indebtedness being refinanced and similar agreements incurred provided there is no increase in the ordinary course amount thereof;
(g) unsecured Indebtedness of business any of BGI's Subsidiaries to, or in connection respect of Obligations of, BGI or another Subsidiary of BGI consisting of intercompany loans and, -89- if no Default or Event of Default shall have occurred and be continuing at the time such Indebtedness is incurred, any other Investments;
(h) unsecured Indebtedness of BGI to, or in respect of obligations of, a Subsidiary of BGI consisting of intercompany loans and, if no Default or Event of Default shall have occurred and be continuing at the time such Indebtedness is incurred, any other Investments;
(i) Indebtedness of Foreign Subsidiaries (other than Indebtedness permitted under clause (g) hereof) with an aggregate principal Dollar Equivalent amount outstanding not to exceed $30,000,000;
(j) Indebtedness of the development Borrowers in respect of Real Estate the Existing Synthetic Lease Facility and the New Synthetic Lease Facility, provided, however, that the aggregate amount of Indebtedness permitted thereunder (i) on and after the Closing Date through October 31, 2002 shall not exceed $100,000,000 and (ii) on and after November 1, 2002 shall not exceed $75,000,000;
(k) Indebtedness in respect of Permitted Joint Venture Activity, provided that no Default or construction Event of infrastructure Default has occurred and is continuing or would result therefrom;
(l) unsecured Indebtedness of BGI and its Subsidiaries in connection therewithrespect of the private placement offering of debt securities to be made after the Closing Date in an aggregate principal amount outstanding not to exceed $50,000,000 at any time; and
(viiim) Other Indebtedness of BGI and its Domestic Subsidiaries in addition to Indebtedness otherwise permitted by clause (a) to (l) above with an aggregate principal Dollar Equivalent amount outstanding not to exceed 20% of Consolidated Tangible Net Worth (determined as of the REIT Guarantor and last day of the Borrower (but not any other Credit PartyFiscal Quarter most recently ended), including in connection with customary recourse carve-outs provided that at the time of incurrence of such Indebtedness no Default or Event of Default has occurred and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower is continuing or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1)result therefrom.
Appears in 1 contract
Sources: Multicurrency Revolving Credit Agreement (Borders Group Inc)
Restrictions on Indebtedness. The Credit Parties Borrower will not, and will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(iib) Unsecured Indebtedness provided that to the Credit Parties remain Lender Hedge Providers in compliance with the covenants set forth in §9 after incurring such Indebtednessrespect of any Hedge Obligations;
(iiic) current liabilities of the Credit Parties Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivd) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(ve) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(vif) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viig) subject to the provisions of §9, Non-Recourse Indebtedness; and
(h) subject to the provisions of §9, Recourse Indebtedness incurred of the REIT, Borrower and its Subsidiaries that are not Subsidiary Guarantors or direct or indirect owners of a Subsidiary Guarantor, provided that the aggregate amount of such Recourse Indebtedness shall not at any time exceed ten percent (10%) of Gross Asset Value, provided further that, except as provided in this §8.1(h) below any such Indebtedness is provided by a Person that is a Lender at the time such Indebtedness is created, incurred, assumed or guaranteed; provided further that Borrower may have Recourse Indebtedness to Martni Mac Partners Sand Lake, LLC pursuant to that Lease Guaranty executed effective November 15, 2017 in the amount of up to $1,750,000.00 with respect to “Rent” plus any “Additional Rent” (as such terms are defined in such Lease Guaranty). Notwithstanding the foregoing or anything else in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(g) or (h) above shall have any of the Borrowing Base Assets or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor as collateral, a borrowing base, asset pool or any similar form of credit support for such Indebtedness, (ii) none of the Subsidiary Guarantors shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any other landowners, government or quasi-government or entity or similar entity in the ordinary course of business in connection with the construction or development of any Real Estate, Indebtedness (including, without limitation, subdivision improvement agreementspursuant to any conditional or limited guaranty or indemnity agreement creating liability with respect to Non-Recourse Exclusions), development agreementsother than Indebtedness described in §8.1(a), reimbursement agreements8.1(b), infrastructure development agreements8.1(c), agreements to construct or pay for on-site or off-site improvements 8.1(d) 8.1(e) and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith; and
8.1(f), (viiiiii) Other Indebtedness [reserved] and (iv) none of the REIT Guarantor and Borrower, the Borrower Guarantors or any of their Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness secured by Equity Interests or rights to Distributions (but not any other Credit Partyso-called “mezzanine financing”), including in connection with customary recourse carve-outs and environmental indemnifications related to structurally subordinated Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1)second priority Liens.
Appears in 1 contract
Restrictions on Indebtedness. The Credit Parties Borrower will not, and will not permit any of its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders arising under any of the Loan Documents or the Mortgage Warehousing Facility or a replacement mortgage warehousing facility in favor of PWF and Hedge Obligations the PWF Subsidiaries, to a Lender Hedge Providerthe extent the establishment of such replacement facility would not (A) result in the acceleration of the Loan, or (B) constitute an Event of Default under the Mortgage Warehousing Facility;
(iib) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iii) current Current liabilities of the Credit Parties Borrower or its Subsidiaries incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, business but not incurred through (ix) the borrowing of money, or (iiy) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §Section 7.8;
(vd) Secured purchase money debt or capitalized lease obligations;
(e) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the period Borrower shall at the time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(vif) endorsements Endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viig) Indebtedness incurred existing on the date of this Agreement and listed and described on SCHEDULE 7.12.1 hereto;
(h) Indebtedness to any ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ Mac, GNMA, FHA or other landownersparties with whom the PWF and the PWF Subsidiaries originate, government sell, repurchase or quasi-government service Mortgage Loans, to the extent directly relating to or entity arising out of such origination, sale, repurchase, or similar entity servicing in the ordinary course of business business;
(i) Indebtedness secured by real property acquired upon foreclosure of Mortgages, which, either (i) is so secured at the time of such acquisition, or (ii) is directly related to such real property, not in connection with excess of the construction fair market value thereof, and reasonably expected by the Borrower or development the subject Subsidiary to be recovered from the sale or other disposition of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay the subject real property;
(j) Unsecured Indebtedness for on-site or off-site improvements and similar agreements borrowed money incurred in the ordinary course of business in connection with and not exceeding $750,000, plus intercompany liabilities which have a maturity date which is later than the development Maturity Date and which are subordinated to the Obligations pursuant to subordination agreements reasonably satisfactory to the Agent, which shall permit repayment as long as (A) no Event of Real Estate or construction Default then exists, and (B) no Event of infrastructure in connection therewith; andDefault would thereupon occur (including on a pro forma basis as if applicable financial covenants were tested as of the date of such repayment);
(viiik) Other Indebtedness (exclusive of the REIT Guarantor Indebtedness referred to in clause (x) above) incurred to finance the purchase or leasing of equipment, in the ordinary course of business;
(l) Indebtedness incurred in the ordinary course of business secured by one or more specific assets, in each instance the principal amount of which shall not exceed the GAAP book value of the subject asset(s);
(m) Guaranties by the Borrower and PWF provided for the benefit of Subsidiaries in the ordinary course of business;
(n) Liabilities in the ordinary course of business under the Borrower's (A) credit enhancement products supporting multi-family housing project bonds or other financing of multi-family housing projects, and (B) Yield Guaranties;
(o) Liabilities incurred by the Borrower pursuant to Interest Rate Protection Agreements in the ordinary course of business and not for speculation purposes.
(p) As to PWF and the Borrower (but not any other Credit Party)PWF Subsidiaries, including in connection with customary recourse carve-outs and environmental indemnifications related Indebtedness permitted according to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1the PWF Covenants (but without duplication of any of the foregoing applicable exceptions in clause (i) through (xiii).);
Appears in 1 contract
Restrictions on Indebtedness. The Credit Parties Borrower will not, and will not permit its respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders arising under any of the Loan Documents and the Hedge Obligations to a Lender Hedge ProviderObligations;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iiib) current liabilities of the Credit Parties Borrower or its Subsidiaries incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(vd) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of a Default;
(vie) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viif) Subordinated Debt, which is subordinate to the repayment of the Obligations pursuant to the Subordination Agreement;
(g) Indebtedness incurred in respect of guaranties and warranties contained in Contracts entered into in the ordinary course of business;
(h) indemnification obligations in respect of Payment and Performance Bonds in an amount not to exceed $20,000,000.00; and
(i) Obligations (contingent or otherwise) of Borrower or any other landownersof its Subsidiaries existing or arising under any Derivatives Contract, government provided that (i) such obligations are (or quasi-government or entity or similar entity were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating interest rate fluctuations, and not for purposes of speculation or taking a “market view”; and (ii) such Derivatives Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party. Notwithstanding anything in connection with this Agreement to the construction or development of any Real Estatecontrary, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith; and
(viii) Other Indebtedness none of the REIT Guarantor and the Borrower (but not or its Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on (a) any Equity Interests, right to receive Distributions or similar right in any Subsidiary Guarantoror Unconsolidated Affiliate of such Person or (b) any of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower their respective properties or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1)assets.
Appears in 1 contract
Sources: Senior Secured Term Loan Agreement (Cogdell Spencer Inc.)
Restrictions on Indebtedness. The Credit Parties Borrower will not, and will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(iib) Unsecured Indebtedness provided that to the Credit Parties remain Lender Hedge Providers in compliance with the covenants set forth in §9 after incurring such Indebtednessrespect of any Hedge Obligations;
(iiic) current liabilities of the Credit Parties Borrower, the Guarantor or their respective Subsidiaries incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivd) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(ve) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(vif) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;; and
(viig) subject to the provisions of §9, Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity of REIT and Borrower in respect of Derivatives Contracts that are entered into in the ordinary course of business in connection with and not for speculative purposes;
(h) subject to the construction or development provisions of any Real Estate§9, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for onNon-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Recourse Indebtedness that is secured by Real Estate or construction of infrastructure in connection therewith; and
(viii) Other Indebtedness of the REIT Guarantor and the Borrower (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than the Mortgaged Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Indebtedness shall not exceed $3,000,000 from the Closing Date to and including January 31, 2015, and fifteen percent (15.0%) of Gross Asset Value at any time thereafter;
(j) unsecured Indebtedness of Subsidiaries of Borrower to Borrower; provided that any such Indebtedness of a Subsidiary of Borrower that is a Guarantor shall be subordinate to the repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Mortgaged Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary GuarantorGuarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, (ii) none of the REIT GuarantorBorrower, provided the REIT Guarantor and the Borrower Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain in compliance liable, contingently or otherwise, with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person; and (z) no Subsidiary of Borrower which directly or indirectly owns a Subsidiary Guarantor) from incurring Mortgaged Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness which would be prohibited by other than Indebtedness to the terms of this §8.1)Lenders arising under the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Carter Validus Mission Critical REIT II, Inc.)
Restrictions on Indebtedness. The Credit Parties None of the Borrowers will, nor will not permit any of its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders Lenders, the Agents and the Issuing Banks arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iii) current liabilities of the Credit Parties incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(iv) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(v) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(vib) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viic) Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity in the ordinary course of business in connection with the construction or development acquisition after the Closing Date of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements Property (and in any event not more than ninety (90) days from the date of such acquisition) by such Borrower or such Subsidiary as contemplated by Section 9.2(x);
(d) obligations under or guaranties of Capitalized Leases;
(e) Indebtedness in respect of Hedging Agreements entered into for hedging purposes only and not for speculation; provided that nothing in this Section 9.1(e) shall be deemed to construct prohibit equity hedging arrangements that constitute Restricted Payments permitted pursuant to Section 9.4;
(f) Indebtedness existing on the Closing Date and listed and described on Schedule 9.1 hereto including any extensions or pay for on-site or off-site improvements refinancings thereof on substantially similar terms as the Indebtedness being refinanced and similar agreements incurred provided there is no increase in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith; andamount thereof;
(viiig) Other unsecured Indebtedness of any of BGI's Subsidiaries to, or in respect of Obligations of, BGI or another Subsidiary of BGI consisting of intercompany loans and, if no Default or Event of Default shall have occurred and be continuing at the REIT Guarantor and the Borrower (but not time such Indebtedness is incurred, any other Credit PartyInvestments;
(h) unsecured Indebtedness of BGI to, or in respect of obligations of, a Subsidiary of BGI consisting of intercompany loans and, if no Default or Event of Default shall have occurred and be continuing at the time such Indebtedness is incurred, any other Investments;
(i) Reserved;
(j) Indebtedness of BGI and its Subsidiaries in addition to Indebtedness otherwise permitted by clause (a) to (i) above with an aggregate principal Dollar Equivalent amount outstanding not to exceed 40% of Consolidated Tangible Net Worth (determined as of the last day of the Fiscal Quarter most recently ended), including in connection with customary recourse carve-outs provided that at the time of incurrence of such Indebtedness no Default or Event of Default has occurred and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower is continuing or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1)result therefrom.
Appears in 1 contract
Sources: Multicurrency Revolving Credit Agreement (Borders Group Inc)
Restrictions on Indebtedness. The Credit Parties will not Neither the Borrower nor any of its Subsidiaries shall become or be a guarantor or surety of, or otherwise create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness, or become or be responsible in any manner (whether by agreement to purchase any obligations, stock, assets, goods or services, or to supply or advance any funds, assets, goods or services or otherwise) with respect to any Indebtedness of any other Person, or incur any Indebtedness other than:
(a) Indebtedness arising under this Agreement or the other Loan Documents;
(b) Existing Indebtedness of the Borrower and its Subsidiaries listed on Schedule 8.1(b) hereto on the terms and conditions in effect as of the date hereof, including extensions, renewals and refinancing of such Indebtedness in amounts no greater than and on terms no more restrictive than exist on the Closing Date;
(i) Indebtedness incurred by the Borrower or any Subsidiary with respect to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge Provider;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iii) current liabilities of the Credit Parties suretyship or performance bond incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but not incurred through its business (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(iv) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(v) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(vi) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(vii) Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity in the ordinary course of business in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewiththan landfill closure bonds); and
(viiiii) Other Guarantees of the Subsidiaries' obligations to governmental authorities in lieu of the posting of any landfill closure bonds;
(i) Indebtedness of the REIT Guarantor and the Borrower Borrower's Subsidiaries, (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to ii) secured Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1).Borrower,
Appears in 1 contract
Sources: Revolving Credit Agreement (Usa Waste Services Inc)
Restrictions on Indebtedness. The Credit Parties Borrower will not, and will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(iib) Unsecured Indebtedness provided that to the Credit Parties remain Lender Hedge Providers in compliance with the covenants set forth in §9 after incurring such Indebtednessrespect of any Hedge Obligations;
(iiic) current liabilities of the Credit Parties Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivd) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(ve) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(vif) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;; and
(viig) subject to the provisions of §9, Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity of REIT and Borrower in respect of Derivatives Contracts that are entered into in the ordinary course of business in connection and not for speculative purposes;
(h) subject to the provisions of §9, Non-Recourse Indebtedness that is secured by Real Estate (other than the Pool Properties or interest therein) and related assets;
(i) subject to the provisions of §9, Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Secured Debt shall not exceed fifteen percent (15.0%) of Gross Asset Value at any time;
(j) from and after the occurrence of the Release of Security Date and subject to the provisions of §9, Unsecured Debt which is pari passu with the construction Indebtedness described in clause (a) above, provided that from and after the occurrence of the Release of Security Date such Unsecured Debt described in this §8.1(j) may have any of the Pool Properties or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct interest therein or pay for on-site any direct or off-site improvements and similar agreements incurred indirect ownership interest in the ordinary course Borrower or any Subsidiary Guarantor as an unsecured borrowing base, asset pool or similar form of business in connection with the development of Real Estate or construction of infrastructure in connection therewithcredit support for such Unsecured Debt; and
(viiik) Other unsecured Indebtedness of Subsidiaries of Borrower to Borrower; provided that any such Indebtedness of a Subsidiary of Borrower that is a Guarantor shall be subordinate to the REIT Guarantor repayment of the Obligations on terms reasonably acceptable to Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(h) and (i) above shall have any of the Borrower (but not Pool Properties or any other Credit Party), including interest therein or any direct or indirect ownership interest in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) Guarantor as collateral, a borrowing base, unencumbered asset pool or any similar form of credit support for such Indebtedness, provided that from and after the occurrence of the REIT GuarantorRelease of Security Date, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth Indebtedness described in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor8.1(j) from incurring Indebtedness which would be prohibited by may, subject to the terms of this Agreement, have any of the Pool Properties as an unsecured borrowing base, asset pool or similar form of credit support for such Unsecured Debt, (ii) none of the Borrower, the Guarantors or their respective Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (other than Indebtedness to the Lenders arising under the Loan Documents) with respect to which there is a Lien on any Equity Interests, right to receive Distributions or similar right in any Subsidiary or Unconsolidated Affiliate of such Person, provided that from and after the Release of Security Date the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1)8.1(j) subject to the terms of this Agreement; and (iii) no Subsidiary of Borrower which directly or indirectly owns a Pool Property shall create, incur, assume, guarantee or be or remain liable, contingently, with respect to any Indebtedness other than Indebtedness to the Lenders arising under the Loan Documents, provided that from and after the Release of Security Date the Subsidiary Guarantors may guarantee other Unsecured Debt permitted by §8.1(j) subject to the terms of this Agreement.
Appears in 1 contract
Sources: Credit Agreement (Carter Validus Mission Critical REIT II, Inc.)
Restrictions on Indebtedness. The Credit Parties Borrower will not, and will not permit its respective Subsidiaries or any of the Guarantors to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iiib) current liabilities of the Credit Parties Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(vd) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of a Default;
(vie) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viif) subject to the provisions of §9, Recourse Indebtedness which is Secured Debt, provided that the aggregate amount of such Recourse Indebtedness outstanding at any one time shall not exceed seven and one-half percent (7.5%) of Consolidated Total Asset Value;
(g) Non-Recourse Indebtedness of Subsidiaries of Borrower that are not Guarantors;
(h) Non-Recourse Indebtedness of Borrower or a Guarantor constituting purchase money indebtedness or incurred to any other landowners, government or quasi-government or entity or similar entity in the ordinary course of business in connection with the construction or development of any Real Estateequipment financing, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements not to construct or pay for on-site or off-site improvements and similar agreements incurred exceed $2,000,000.00 in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewithaggregate outstanding at any time;
(i) Intentionally Omitted; and
(viii) Other Indebtedness of the REIT Guarantor and the Borrower (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1).
Appears in 1 contract
Restrictions on Indebtedness. The Credit Parties Borrower and the Guarantors will not, and will not permit their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iiib) current liabilities of the Credit Parties Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily customarily, extended and in fact extended in connection with normal purchases of goods and services;
(ivc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(vd) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of a Default;
(vie) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viif) subject to the provisions of §9, Non-Recourse Indebtedness incurred of the REIT, Borrower and their respective Subsidiaries (other than the Subsidiary Guarantors or any other Subsidiary of the Borrower owning an interest in a Subsidiary Guarantor); provided that REIT or the Borrower may provide a guaranty or indemnity with respect to Non-Recourse Exclusions in connection with such Non-Recourse Indebtedness; and
(g) subject to the provisions of §9, Indebtedness (other than Non-Recourse Indebtedness) of the REIT, Borrower and their respective Subsidiaries. Notwithstanding anything in this Agreement to the contrary, (i) none of the Subsidiary Guarantors shall create, incur, assume, guarantee or be or remain liable contingently or otherwise, with respect to any Indebtedness described in §8.1(f) or any Indebtedness described in §8.1(g) that is Secured Indebtedness, (ii) a Subsidiary Guarantor shall only provide a guaranty of other landownersUnsecured Indebtedness of the Borrower permitted pursuant to §8.1(g), government and (iii) none of the Indebtedness described in §8.1(f) or quasi§8.1(g) that is Secured Indebtedness shall have any of the Unencumbered Borrowing Base Properties or any interest therein or equipment related thereto or any direct or indirect ownership interest in any Subsidiary Guarantor as collateral, a borrowing base, asset pool or any similar form of credit support for such Indebtedness (provided that the foregoing shall not preclude REIT or the Borrower from incurring liability with respect to Non-government or entity or similar entity in the ordinary course of business Recourse Exclusions in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith; and
(viii) Other Indebtedness of the REIT Guarantor and the Borrower (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth described in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.18.1(f)).
Appears in 1 contract
Sources: Term Loan Agreement (Mid America Apartment Communities Inc)
Restrictions on Indebtedness. The Credit Parties Neither Borrower nor any Restricted Subsidiary will not create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(i) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderObligations;
(ii) Unsecured Indebtedness provided that to the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such extent constituting Indebtedness;
(iii) current , liabilities of the Credit Parties incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(iv) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(viii) Indebtedness in respect of judgments only to the extent, for the period and for an amount or awards that would not resulting in constitute an Event of Default;
(viiv) endorsements for collection, deposit or negotiation and warranties of products or services, in each case obligations under any Hedge Agreement incurred in the ordinary course of businessbusiness for bona fide hedging purposes;
(viiv) Indebtedness incurred to any arising from the honoring by a bank or other landownersfinancial institution of a check, government or quasi-government or entity draft or similar entity instrument inadvertently drawn against insufficient funds in the ordinary course of business, or pursuant to netting services or otherwise in connection with deposit accounts;
(vi) Indebtedness in connection with surety (or similar) bonds, letters of credit and performance bonds obtained in the ordinary course of business in connection with workers’ compensation obligations of the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements Loan Parties and similar agreements incurred in connection with other surety and performance bonds in the ordinary course of business business, including without limitation, Borrower’s and any Restricted Subsidiary’s surety bonds, and indemnification obligations under surety bonds, incurred from time to time in connection with ownership of federal outer continental shelf rights-of-way;
(vii) prior to consummation of the development MGP Equity Sale, and subject to the Master Intercreditor Agreement: (A) Indebtedness of Real Estate or construction MGP and UPS under the MGP/UPS Credit Facility and (B) Indebtedness of infrastructure in connection therewith; andCMGI, MGP and UPS under the CMGI Intercompany Note Documents;
(viii) Other The Senior Unsecured Convertible Notes. (ix) unsecured privately placed or public term senior Indebtedness in an aggregate principal amount not to exceed $300,000,000, with a maturity not earlier than 6 months after the Maturity Date and on terms and conditions not materially more restrictive than the Loan Documents taken as a whole; provided, with respect to any such Indebtedness: (x) both immediately prior to and immediately following the issuance of such Indebtedness, no Default or Event of Default shall have occurred and be continuing, and (y) as of the REIT Guarantor date of such issuance of such Indebtedness, the financial covenants contained in §9.1 are satisfied on a pro forma basis after giving effect to the issuance of such Indebtedness and the Borrower (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) application of the REIT Guarantorproceeds thereof, provided as if it occurred on the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries last day of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1)immediately following fiscal quarter.
Appears in 1 contract
Sources: Revolving Credit Agreement (CorEnergy Infrastructure Trust, Inc.)
Restrictions on Indebtedness. The Credit Parties will not createCreate, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Agent and the Lenders (and their respective Affiliates) arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(iib) Unsecured Indebtedness provided that arising under the Revolving Credit Parties remain in compliance with the covenants set forth in §9 after incurring such IndebtednessAgreement;
(iiic) current liabilities of the Credit Parties Borrower incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but not incurred business other than through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivd) Indebtedness of Whitestone OP (other than relating to the Project) in an aggregate amount not in excess of $500,000 in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.88.9 (but including, in any event, any Indebtedness secured by an M&M Lien);
(ve) Indebtedness of Whitestone OP (other than relating to the Project) in an aggregate amount not in excess of $1,000,000 in respect of judgments only to or awards that have been in force for less than the extentapplicable period for taking an appeal so long as execution is not levied thereunder or in respect of which, at the time, a good faith appeal or proceeding for the period review is being prosecuted, and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(vif) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viig) Secured term loan Indebtedness of Whitestone OP and its Subsidiaries (but not Pima Norte) disclosed on Schedule 9.1(f) or incurred after the Closing Date, provided that: (i) such Indebtedness is Without Recourse to the Borrower or the Trust and is Without Recourse to any of the respective assets of any of the Borrower or the Trust other than to the specific Real Estate Asset or Assets acquired, refinanced or rehabilitated with the proceeds of such Indebtedness, and (ii) at the time any such Indebtedness is incurred and after giving effect thereto, there exists no Default or Event of Default hereunder;
(h) contingent liabilities of Whitestone OP disclosed in the financial statements referred to in §7.4 or on Schedule 9.1(g) hereto, and such other contingent liabilities of the Borrower having a combined aggregate potential liability of not more than $1,000,000 at any time;
(i) Indebtedness incurred to any of Whitestone OP for the purchase price of capital assets (other landowners, government or quasi-government or entity or similar entity than Real Estate Assets but including Indebtedness in the ordinary course respect of business in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements Capitalized Leases) incurred in the ordinary course of business business, provided that the aggregate principal amount of Indebtedness permitted by this clause (i) shall not exceed $500,000 at any time outstanding; and
(j) Recourse Indebtedness of Whitestone OP incurred after the Closing Date (other than Indebtedness relating to or affecting the Project) in connection with the development purchase of or the construction of or renovation of improvements on any Real Estate Asset, provided that (i) the aggregate principal amount of Indebtedness permitted by this clause (i) shall not exceed $40,000,000 at any time outstanding, and (ii) at the time any such Indebtedness is incurred and after giving effect thereto, there exists no Default or construction Event of infrastructure Default hereunder. Notwithstanding the foregoing, in connection therewith; and
no event shall the Borrower, the Trust or any of their respective Subsidiaries incur or have outstanding (viiii) Other unhedged variable rate Indebtedness in excess of fifty percent (50%) of Consolidated Total Indebtedness, or (ii) any other revolving credit facility, whether secured or unsecured, or any unsecured Indebtedness for borrowed money. It is understood and agreed that the provisions of this §9.1 shall not apply to Indebtedness of the REIT Guarantor and any Partially-Owned Entity that is Without Recourse to the Borrower (but or the Trust, or any of their respective assets. The terms and provisions of this §9.1 are in addition to, and not any other Credit Party)in limitation of, including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1)10.
Appears in 1 contract
Restrictions on Indebtedness. The Credit Parties Neither Borrower nor any Restricted Subsidiary will not create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(i) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderObligations;
(ii) Unsecured Indebtedness provided that to the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such extent constituting Indebtedness;
(iii) current , liabilities of the Credit Parties incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(iv) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(viii) Indebtedness in respect of judgments only to the extent, for the period and for an amount or awards that would not resulting in constitute an Event of Default;
(viiv) endorsements for collection, deposit or negotiation and warranties of products or services, in each case obligations under any Hedge Agreement incurred in the ordinary course of businessbusiness for bona fide hedging purposes;
(viiv) Indebtedness incurred to any arising from the honoring by a bank or other landownersfinancial institution of a check, government or quasi-government or entity draft or similar entity instrument inadvertently drawn against insufficient funds in the ordinary course of business, or pursuant to netting services or otherwise in connection with deposit accounts;
(vi) Indebtedness in connection with surety (or similar) bonds, letters of credit and performance bonds obtained in the ordinary course of business in connection with workers’ compensation obligations of the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements Loan Parties and similar agreements incurred in connection with other surety and performance bonds in the ordinary course of business business, including without limitation, Borrower’s and any Restricted Subsidiary’s surety bonds, and indemnification obligations under surety bonds, incurred from time to time in connection with ownership of federal outer continental shelf rights-of-way;
(vii) prior to consummation of the development MGP Equity Sale, and subject to the Master Intercreditor Agreement: (A) Indebtedness of Real Estate or construction MGP and UPS under the MGP/UPS Credit Facility and (B) Indebtedness of infrastructure in connection therewith; andCMGI, MGP and UPS under the CMGI Intercompany Note Documents;
(viii) Other The Senior Unsecured Convertible Notes;
(ix) unsecured privately placed or public term senior Indebtedness in an aggregate principal amount not to exceed $300,000,000, with a maturity not earlier than 6 months after the Maturity Date and on terms and conditions not materially more restrictive than the Loan Documents taken as a whole; provided, with respect to any such Indebtedness: (x) both immediately prior to and immediately following the issuance of such Indebtedness, no Default or Event of Default shall have occurred and be continuing, and (y) as of the REIT Guarantor date of such issuance of such Indebtedness, the financial covenants contained in §9.1 are satisfied on a pro forma basis after giving effect to the issuance of such Indebtedness and the Borrower (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) application of the REIT Guarantorproceeds thereof, provided as if it occurred on the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries last day of the REIT Guarantor immediately following fiscal quarter; or
(other than Borrower or a Subsidiary Guarantorx) from incurring guarantees of Indebtedness which would be prohibited by the terms of permitted under this §8.1).
Appears in 1 contract
Sources: Revolving Credit Agreement (CorEnergy Infrastructure Trust, Inc.)
Restrictions on Indebtedness. The Credit Parties Borrowers and the Guarantors will not, and will not permit their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(iib) Unsecured Indebtedness provided that to the Credit Parties remain Lender Hedge Providers in compliance with the covenants set forth in §9 after incurring such Indebtednessrespect of any Hedge Obligations;
(iiic) current liabilities of the Credit Parties Borrowers, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivd) Indebtedness in respect of (i) taxes, assessments, governmental charges or levies and (ii) claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.87.8 or §8.20, as applicable;
(ve) Indebtedness arising under, or in respect of judgments only to connection with, the extent, for the period and for Corporate Credit Agreement in an aggregate amount not resulting in an Event of Defaultto exceed $540,000,000 and any Permitted Refinancing thereof;
(vif) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viig) subject to the provisions of §9, (i) Secured Debt that is Recourse Indebtedness, provided that the aggregate amount of such Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity in the ordinary course of business in connection (together with the construction Obligations and the Hedge Obligations but excluding Indebtedness described in §8.1(e) ) shall not exceed fifteen percent (15%) of Gross Asset Value, and (ii) Non-Recourse Indebtedness, provided that none of such Persons shall incur any of the Indebtedness described in this §8.1(g) in excess of $50,000,000 unless it shall have provided to the Agent prior written notice of the proposed incurrence of such Indebtedness, a statement that the borrowing will not cause a Default or development Event of any Real EstateDefault and a Compliance Certificate demonstrating that the Borrowers and Guarantors will be in compliance with their covenants referred to therein after giving effect to the incurrence of such Indebtedness;
(h) the Indebtedness of QTLP with respect to the QTLP Subordinate Debt, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements which is subordinated to construct or pay for on-site or off-site improvements the repayment of the Obligations and similar agreements incurred in the ordinary course of business in connection with Hedge Obligations pursuant to QTLP Subordination and Standstill Agreement;
(i) [Intentionally Omitted];
(j) the development of Real Estate or construction of infrastructure in connection therewithEquipment Loan; and
(viiik) Other subject to the provisions of §9, Unsecured Indebtedness of QTLP, REIT (following the REIT occurrence of the IPO Event) or Subsidiaries of QTLP that are not a Borrower, QTS Richmond TRS or an Additional Subsidiary Guarantor and the Borrower (but not or any other Credit Partydirect or indirect owners of such Subsidiaries), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than provided that none of such Persons shall incur any Subsidiary Guarantor) of the REIT GuarantorIndebtedness described in this §8.1(k) in excess of $50,000,000 unless it shall have provided to the Agent prior written notice of the proposed incurrence of such Indebtedness, provided a statement that the REIT Guarantor borrowing will not cause a Default or Event of Default and a Compliance Certificate demonstrating that the Borrower remain Borrowers and Guarantors will be in compliance with its covenants referred to therein after giving effect to the covenants set forth incurrence of such Indebtedness. Notwithstanding anything in this Agreement to the contrary, (i) none of the Borrowers, QTS Richmond TRS, the Additional Subsidiary Guarantors or any Subsidiaries of QTLP directly or indirectly owning a Borrower, QTS Richmond TRS or an Additional Subsidiary Guarantor shall create, incur, assume, guarantee or be or remain liable contingently or otherwise, with respect to any Unsecured Indebtedness other than Indebtedness described in §§9.1 through 9.5 after incurring 8.1(c), (d) and (f), (ii) none of the Indebtedness described in §8.1(g) above shall have any of the Mortgaged Properties or any interest therein or equipment related thereto or any direct or indirect ownership interest in a Borrower, QTS Richmond TRS or an Additional Subsidiary Guarantor as collateral, a borrowing base, asset pool or any similar form of credit support for such Indebtedness. The Indebtedness (provided that the foregoing shall not preclude Subsidiaries of the REIT Guarantor Parent Company (other than Borrower a Borrower, QTS Richmond TRS or a an Additional Subsidiary GuarantorGuarantor (or any direct or indirect owners of such Subsidiaries)) from incurring to incur Non-Recourse Indebtedness which would be prohibited by subject to the terms of this §8.18.1 or recourse to the general credit of the Parent Company), and (iii) none of the Borrowers, QTS Richmond TRS, Additional Subsidiary Guarantors or any Subsidiary of QTLP directly or indirectly owning an interest therein shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (including, without limitation, pursuant to any conditional or limited guaranty or indemnity agreement creating liability with respect to usual and customary exclusions from the non-recourse limitations governing the Non-Recourse Indebtedness of any Person, or otherwise) other than Indebtedness described in §§8.1(a)-(d), (f) and (j)(as to QIPM only) above.
Appears in 1 contract
Restrictions on Indebtedness. The Credit Parties None of the Borrowers will, nor will not permit any of its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders Lenders, the Agents and the Issuing Banks arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iii) current liabilities of the Credit Parties incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(iv) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(v) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(vib) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viic) Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity in the ordinary course of business in connection with the construction or development acquisition after the Closing Date of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements Property (and in any event not more than ninety (90) days from the date of such acquisition) by such Borrower or such Subsidiary as contemplated by Section 9.2(x);
(d) obligations under or guaranties of Capitalized Leases;
(e) Indebtedness in respect of Hedging Agreements entered into for hedging purposes only and not for speculation; provided that nothing in this Section 9.1(e) shall be deemed to construct prohibit equity hedging arrangements that constitute Restricted Payments permitted pursuant to Section 9.4;
(f) Indebtedness existing on the Closing Date and listed and described on Schedule 9.1 hereto including any extensions or pay for on-site or off-site improvements refinancings thereof on substantially similar terms as the Indebtedness being refinanced and similar agreements incurred provided there is no increase in the ordinary course amount thereof;
(g) unsecured Indebtedness of business any of BGI's Subsidiaries to, or in connection with respect of Obligations of, BGI or another Subsidiary of BGI consisting of intercompany loans and, if no Default or Event of Default shall have occurred and be continuing at the development time such Indebtedness is incurred, any other Investments;
(h) unsecured Indebtedness of Real Estate BGI to, or construction in respect of infrastructure obligations of, a Subsidiary of BGI consisting of intercompany loans and, if no Default or Event of Default shall have occurred and be continuing at the time such Indebtedness is incurred, any other Investments;
(i) Indebtedness of BGI and its Subsidiaries in connection therewithrespect of the Senior Notes; provided that aggregate principal amount outstanding shall not exceed $50,000,000 at any time; and
(viiij) Other Indebtedness of BGI and its Subsidiaries in addition to Indebtedness otherwise permitted by clause (a) to (i) above with an aggregate principal Dollar Equivalent amount outstanding not to exceed 40% of Consolidated Tangible Net Worth (determined as of the REIT Guarantor and last day of the Borrower (but not any other Credit PartyFiscal Quarter most recently ended), including in connection with customary recourse carve-outs provided that at the time of incurrence of such Indebtedness no Default or Event of Default has occurred and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower is continuing or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1)result therefrom.
Appears in 1 contract
Sources: Multicurrency Revolving Credit Agreement (Borders Group Inc)
Restrictions on Indebtedness. The Credit Parties Borrowers will not, and will not permit any Guarantor or their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(iib) Unsecured Indebtedness provided that to the Credit Parties remain Lender Hedge Providers in compliance with the covenants set forth in §9 after incurring such Indebtednessrespect of any Hedge Obligations;
(iiic) current liabilities of Borrowers, the Credit Parties Guarantors or their respective Subsidiaries incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivd) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §Section 7.8;
(ve) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of DefaultDefault under Section 12.1(l);
(vif) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and
(g) subject to the provisions of Section 9, Indebtedness of Borrowers in respect of Derivatives Contracts that are entered into in the ordinary course of business and not for speculative purposes;
(viih) contingent obligations of Parent in respect of Indebtedness or other obligations of another Borrower not prohibited under this Agreement or any other Loan Document;
(i) subject to the provisions of Section 9, Non-Recourse Indebtedness provided or insured by U.S. Department of Housing and Urban Development/Federal Housing Authority, the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, any successor of any of the foregoing or another lender approved by Administrative Agent, such approval not to be unreasonably withheld, conditioned or delayed, that is secured by Real Estate (other than the Collateral Properties or any interest therein) and assets relating solely to such Real Estate; and
(j) Indebtedness incurred to any other landownersacquire furniture, government fixtures or quasi-government equipment to which a Borrower or entity or similar entity a Subsidiary thereof is a party in the ordinary course of business in connection with an aggregate outstanding amount not to exceed $10,000,000.00 at any time, provided, however, that (i) the construction or development term of any Real Estatesuch Indebtedness cannot exceed three (3) years, including(ii) such Indebtedness shall amortize in a manner consistent with Borrowers’ current financings of this type, without limitation(iii) such Indebtedness cannot be reborrowed or refinanced and (iv) such Indebtedness is subject to an Intercreditor Agreement, subdivision improvement agreementsa subordination, development agreementsnon-disturbance and attornment agreement and such other documents or agreements reasonably requested by Administrative Agent;
(k) Indebtedness (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) owed to any Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to Borrowers or any Subsidiary thereof, pursuant to reimbursement agreementsor indemnification obligations to such Person, infrastructure development agreementsin each case in the ordinary course of business or consistent with past practice or industry practices;
(l) Indebtedness in respect of performance bonds, agreements to construct or pay for on-site or off-site improvements bid bonds, appeal bonds, surety bonds and completion guarantees and similar agreements obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(m) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred in the ordinary course of business business;
(n) Indebtedness representing deferred compensation to employees, consultants or independent contractors of Borrowers (or, to the extent such work is done for Borrowers or their respective Subsidiaries, any direct or indirect parent thereof) or any Subsidiary thereof incurred in connection with the development ordinary course of Real Estate or construction business;
(o) Indebtedness consisting of infrastructure the financing of insurance premiums in connection therewiththe ordinary course of business;
(p) obligations in respect of cash management agreements; and
(viiiq) Other Receivables Financings of HUD Owners in an aggregate outstanding amount not to exceed $15,000,000.00 at any time, so long as (i) the only assets securing such Receivables Financings are Receivables Financing Collateral and (ii) each such Receivables Financing is subject to an Intercreditor Agreement, a subordination, non-disturbance and attornment agreement and such other documents or agreements reasonably requested by Administrative Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in Sections 8.1(i) or 8.1(j) shall have any of the Collateral Properties, Villa Units or any interest therein or any direct or indirect ownership interest in any Borrower or any Subsidiary thereof as collateral, a borrowing base, asset pool or any similar form of credit support for such Indebtedness, (ii) only the Borrower owning such Real Estate or other applicable asset, if such Indebtedness is secured as expressly permitted by Section 8.2, shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to, any Indebtedness (including pursuant to any conditional or limited guaranty or indemnity agreement creating liability with respect to usual and customary exclusions from the non-recourse limitations governing the Non-Recourse Indebtedness of any Person, or otherwise) other than Indebtedness described in Sections 8.1(a), 8.1(c), 8.1(d), 8.1(e), 8.1(f) and 8.1(k) through 8.1(p), (iii) the REIT Guarantor only Indebtedness that may be incurred by a HUD Owner is a HUD Financing and the Borrower (but not any other Credit PartyIndebtedness described in Sections 8.1(c), including 8.1(d), 8.1(e), 8.1(f) and 8.1(j) through 8.1(q), and in connection with customary recourse carve-outs the case of 8.1(j), without giving effect to the maximum amount set forth therein or clauses (i) and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantorii) of the REIT Guarantorproviso thereof, provided and (iv) until the REIT Guarantor and the Borrower remain in compliance with the covenants date set forth therein, in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing no event shall any Borrower guarantee, or otherwise be contingently liable for, any Indebtedness or other obligation of any Person that is not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1)Loan Party.
Appears in 1 contract
Sources: Senior Secured Credit Agreement (Griffin-American Healthcare REIT III, Inc.)
Restrictions on Indebtedness. The Credit Parties Borrower will not createnot, nor will it permit any Subsidiary of the Borrower to, issue, incur, assume, guarantee or be or remain liablecreate, become liable for, contingently or otherwise, with respect or have outstanding any Indebtedness; provided, however, that the foregoing provisions shall not restrict nor operate to any Indebtedness other thanprevent the following Indebtedness:
(ia) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderObligations;
(iib) Unsecured Non-Recourse Indebtedness provided that of any Project Finance Subsidiary;
(c) so long as the Credit Parties remain Borrower would be in compliance with Section 7.17 hereof (calculated as of the covenants date of, and after giving affect to, the incurrence of such Indebtedness), secured Indebtedness (excluding Indebtedness of the type described in (e) below but including the pledge of stock or similar equity interest of any Project Finance Subsidiary or any Subsidiary which is an entity whose sole purpose and extent of business activities is to own the stock or similar equity interest of such Project Finance Subsidiary) (A) set forth in §9 after incurring such Indebtedness;
on Schedule 7.15(c) hereto, (iiiB)(i) current liabilities of the Credit Parties incurred in the ordinary course of businessBHP or CLF&P, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but not incurred through (i) the borrowing of money, or (ii) evidencing the obtaining deferred purchase price of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(iv) Indebtedness in respect of taxes, assessments, governmental charges newly acquired property or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(v) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(vi) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(vii) Indebtedness incurred to any other landowners, government finance the acquisition of personal property of the Borrower or quasi-government or entity or similar entity a Subsidiary of the Borrower used in the ordinary course of business of the Borrower or Subsidiary, (iii) constituting Capitalized Lease Obligations or with respect to synthetic (or similar type) lease arrangements, or (iv) incurred in connection with the construction performance of tenders, statutory obligations, bids, leases or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay other similar obligations (other than for on-site or off-site improvements and similar agreements incurred borrowed money) entered into in the ordinary course of business or to secure obligations on performance bonds; provided, that the aggregate amount of Indebtedness permitted by clause (B)(iv) of this Section 7.15(c) at any time outstanding shall not exceed 5% of Consolidated Assets as reflected on the most recent balance sheet delivered by the Borrower pursuant to Section 7.6 hereof and (C) constituting first mortgage bond debt which is issued or incurred by Black Hills Utility Holdings, Inc. or any of its direct or indirect Subsidiaries to finance the design, permitting, construction, ownership, operation or maintenance of utility properties which does not mature prior to the Termination Date, as extended from time to time in connection accordance with the development terms hereof, and is not in excess of Real Estate an amount equal to fifty percent (50%) of the net book value of the property, plant and equipment of Black Hills Utility Holdings, Inc. (as reported in the most recent quarterly financial statements which were prepared in accordance with GAAP); provided, the Borrower shall promptly provide the Administrative Agent with a copy of any documentation evidencing such Indebtedness in excess of $25,000,000 and any modification to such Indebtedness;
(d) so long as the Borrower would be in compliance with Section 7.17 hereof (calculated as of the date of, and after giving affect to, the incurrence of such Indebtedness), other Indebtedness (excluding Indebtedness of the type described in (e) below) which is unsecured and either junior in right of payment to the Obligations or construction pari passu to the Obligations or is equally and ratably secured with the Obligations, provided that the Borrower shall promptly provide the Administrative Agent with a copy of infrastructure any documentation evidencing such Indebtedness in connection therewithexcess of $25,000,000 and any modification to such Indebtedness;
(e) intercompany loans (i) from (x) any Subsidiary of the Borrower to the Borrower so long as such loans are subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent, and (y) the Borrower to a Subsidiary of the Borrower and (ii) among Wholly-Owned Subsidiaries;
(f) [Reserved];
(g) [Reserved];
(h) Permitted Derivative Obligations; and
(viiii) Other Indebtedness of the REIT Guarantor and the Borrower pursuant to Long-Term Guaranties. Indebtedness shall only be permitted under (but not any other Credit Partyd), including in connection with customary recourse carve-outs (e), (h), and environmental indemnifications related (i) above to the extent such Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) will have a priority of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance payment with the covenants Obligations which is no greater than pari passu (and with respect to clause (e), to the extent such Indebtedness is subordinated to the Obligations as set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1clause).
Appears in 1 contract
Restrictions on Indebtedness. The Credit Loan Parties will not create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(i) (x) Indebtedness to the Lenders arising under any of the Loan Documents and Documents, (y) Hedge Obligations to a Lender Hedge Provider, and (z) Indebtedness to any counterparty other than a Lender Hedge Provider with respect to any Derivatives ContractsContract made in the ordinary course of business (and not for speculative purposes);
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iii) current liabilities of the Credit Parties incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(iviii) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(viv) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(viv) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viivi) Indebtedness incurred to any other landowners, government or quasi-quasi- government or entity or similar entity in the ordinary course of business in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith; and
(viiivii) Other (a) Secured Recourse Indebtedness of Parent Borrower, Parent Guarantor, or IR OpCo as and to the extent not prohibited (and subject to the limitations set forth) in §9.6 and (b) Unsecured Recourse Indebtedness of the REIT Loan Parties as and to the extent not prohibited (and subject to the limitations set forth) in §9.9; NYDOCS03/1107437.11107437.2
(viii) (a) the Indebtedness set forth on Schedule 8.1 hereto, and any Permitted Refinancing Indebtedness in respect of any such Indebtedness, (b) Indebtedness (including Capitalized Leases) financing the acquisition or replacement of equipment and, limited as to each of the Subsidiary Borrowers, to $25,000.00 per fiscal year, and (c) intercompany Indebtedness of the Loan Parties outstanding from time to time; provided that all such intercompany Indebtedness of any Loan Party owed to any Subsidiary of Parent Guarantor and that is not a Loan Party shall be subordinated to the Borrower Obligations pursuant to an Intercompany Note;
(but ix) Non-Recourse Indebtedness entered into in the ordinary course of business of the Loan Parties (other than a Subsidiary Borrower) (including, without limitation, any Indebtedness referred to in the proviso to the definition of Secured Recourse Indebtedness);
(x) [Reserved];
(xi) Recourse Indebtedness consisting of the Non-Recourse Exclusions in respect of Non-Recourse Indebtedness permitted to be incurred pursuant to §8.2(ix);
(xii) subject to the provisions of §9.69.5, Indebtedness of the Loan Parties (other than a Subsidiary Borrower) in an amount not any other Credit Party), including to exceed $100,000.00 in the aggregate assumed in connection with customary recourse carve-outs an Investment not prohibited by this Agreement and environmental indemnifications related any Permitted Refinancing Indebtedness incurred, issued or otherwise obtained to Refinance (in whole or in part) such Indebtedness; provided that, (A) immediately after giving effect to such Indebtedness, no Event of Default exists or is continuing or would result therefrom, and (B) such Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) is and remains solely the obligation of the REIT GuarantorPerson and/or such Person’s subsidiaries that are acquired and such Indebtedness was not incurred in anticipation of such Investment;
(a) Indebtedness in respect of any bankers’ acceptance, provided bank guarantees, letters of credit, warehouse receipt or similar facilities entered into in the REIT 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 (b) Indebtedness represented by letters of credit, to the extent such letters of credit support Indebtedness otherwise permitted under this §8.1(xiii);
(xiv) Indebtedness arising from agreements providing for deferred compensation, indemnification, adjustments of purchase price (including “earnouts”) or similar obligations, in each case entered into in connection with any Investments not prohibited by this Agreement;
(xv) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations incurred in the ordinary course of business and not in connection with the borrowing of money;
(xvi) Indebtedness consisting of obligations to pay insurance premiums arising in the ordinary course of business and not in connection with the borrowing of money;
(xvii) Indebtedness representing deferred compensation to employees, consultants or independent contractors of, Parent Guarantor and its Subsidiaries incurred in the Borrower remain ordinary course of business or in compliance connection with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall any Investments not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by this Agreement;
(xviii) obligations, under cash management agreements, cash management services and other Indebtedness in respect of netting services, automatic clearing house arrangements, employees’ credit or purchase cards, overdraft protections and similar arrangements in each case incurred in the terms ordinary course of this business;
(xix) Indebtedness comprising take or pay obligations contained in supply agreements entered into the ordinary course of business; and NYDOCS03/1107437.11107437.2
(xx) all customary premiums (if any), interest (including post-petition and capitalized interest), fees, expenses, charges and additional or contingent interest on obligations described in each of §8.1)8.1(i) through §8.1(xix) above.
Appears in 1 contract
Sources: Term Loan Agreement (Independence Realty Trust, Inc.)
Restrictions on Indebtedness. The Credit Subject to the further restrictions of §9.1, the Loan Parties will not, and will not permit any of their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(i) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderObligations;
(ii) Unsecured Indebtedness provided of Borrower to any Subsidiary that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtednessis a Guarantor or Indebtedness of any Subsidiary to Borrower or another Subsidiary that is a Guarantor;
(iii) current to the extent constituting Indebtedness, liabilities of the Credit Parties incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(iv) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(iv) contingent obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under §8.8;
(v) Indebtedness in respect of judgments only to the extent, for the period and for an amount or awards that would not resulting in constitute an Event of Default;
(vi) obligations under any Hedge Agreement incurred in the ordinary course of business for bona fide hedging purposes;
(vii) Indebtedness owing to insurance carriers or finance companies and incurred to finance insurance premiums of any Loan Party in the ordinary course of business in a principal amount not to exceed at any time the amount of such insurance premiums to be paid by such Loan Party;
(viii) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds in the ordinary course of business, or pursuant to netting services or otherwise in connection with deposit accounts;
(ix) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viix) Indebtedness incurred to any other landownersin connection with surety (or similar) bonds, government or quasi-government or entity or similar entity letters of credit and performance bonds obtained in the ordinary course of business in connection with workers’ compensation obligations of the construction Loan Parties and in connection with other surety and performance bonds in the ordinary course of business;
(xi) Permitted Existing Indebtedness, including any Permitted Refinancing Indebtedness;
(xii) Non-Recourse Indebtedness (including the Loan Parties’ share of Non-Recourse Indebtedness incurred by any Joint Venture) in an aggregate principal amount not exceeding $250,000,000 at any time, provided that (a) such Non-Recourse Indebtedness is secured solely by either (1) property wholly owned by Borrower or development another Loan Party that is not included in the Borrowing Base, or (2) by property wholly owned by a Joint Venture, (b) Borrower shall have provided Agent (if requested by Agent) with true, correct and complete copies of the substantially final operative loan documents with respect to such Indebtedness at least five (5) Business Days prior to the incurrence of such Indebtedness, (c) Borrower shall have provided to Agent a certificate that (i) no Default or Event of Default exists or would be caused by the incurrence of such Indebtedness, (ii) the leverage ratio of such Non-Recourse Indebtedness relative to the value of the Real Estate securing the same shall, at the time such Indebtedness is incurred, be less than seventy-five percent (75%) (or eighty-five percent (85%) in the case of such Indebtedness in respect of Multifamily Properties), and (iii) with respect to any Non-Recourse Indebtedness of a Joint Venture, a portion of which is allocable to the Loan Parties for purposes of this §8.1(xii), the leverage ratio of such Non-Recourse Indebtedness of such Joint Venture relative to the value of the Real Estate of such Joint Venture securing the same, shall at the time such Indebtedness is incurred, be less than seventy-five percent (75%) (or eighty-five percent (85%) in the case of such Indebtedness in respect of Multifamily Properties); and (d) only Permitted Recourse Undertakings shall be permitted in connection with such Non-Recourse Indebtedness;
(xiii) Indebtedness (other than Non-Recourse Indebtedness or Bond Indebtedness) in an aggregate principal amount not exceeding $75,000,000 at any time (including the portion of all Joint Venture Indebtedness that is recourse to any Loan Party), provided that (a) such Indebtedness is secured solely by property wholly owned by either by Borrower or its Subsidiaries that is not included in the Borrowing Base, or by property wholly owned by a Joint Venture, and (b) Borrower shall have provided to Agent a certificate that (i) no Default or Event of Default exists or would be caused by the incurrence of such Indebtedness, (ii) the leverage ratio of such Indebtedness relative to the value of the property securing the same shall, at the time such Indebtedness is incurred, be less than seventy-five percent (75%) (or eighty-five percent (85%) in the case of such Indebtedness in respect of Multifamily Properties), and (iii) with respect to any Indebtedness of a Joint Venture, a portion of which is allocable to the Loan Parties for purposes of this §8.1(xiii), the ratio of such Indebtedness of such Joint Venture relative to the value of the Joint Venture’s property securing the same, shall, at the time such Indebtedness is incurred, be less than seventy-five percent (75%) (or eighty-five percent (85%) in the case of such Indebtedness in respect of Multifamily Properties); provided, however, that the portion of any Real Estatesecured surety bond Indebtedness in excess of $15,000,000 permitted pursuant to §8.1(xiv) shall be counted against the $75,000,000 limit provided in this paragraph;
(xiv) surety, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct statutory or pay for on-site appeal bonds or off-site improvements and similar agreements obligations incurred in the ordinary course of business in connection with under which the development Loan Parties’ collective potential exposure shall not at any time exceed $75,000,000, of Real Estate or construction which up to $25,000,000 may be secured by Liens pursuant to §8.2(iii);
(xv) Indebtedness under Commodity Hedge Agreements incurred for bona fide hedging purposes up to a maximum aggregate exposure at any time of infrastructure in connection therewith$25,000,000; provided that the aggregate exposure amount may exceed such maximum amount for a period not to exceed five (5) consecutive Business Days; and
(viiixvi) Other Bond Indebtedness (including any guaranties in respect thereof by any Subsidiary of Forestar Group) in an aggregate principal amount not exceeding $250,000,000 at any time, provided that (a) such Indebtedness is unsecured, (b) Borrower shall have provided to Agent a certificate that no Default or Event of Default exists or would be caused by the incurrence of such Indebtedness, (c) if such Bond Indebtedness is not Convertible Bond Indebtedness, the net cash proceeds from the issuance thereof must be applied first to the repayment in full of the REIT Guarantor Term Loan and thereafter may be used for general corporate purposes (it being understood and agreed that the Borrower (but net cash proceeds from the issuance of Convertible Bond Indebtedness shall not any other Credit Partybe required to be applied to prepay the Loans), including and (d) if such Bond Indebtedness is Convertible Bond Indebtedness and a Call Option Overlay is entered into in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantorconjunction therewith, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1)such Call Option Overlay shall be those customary for such transactions.
Appears in 1 contract
Sources: Revolving and Term Credit Agreement (Forestar Group Inc.)
Restrictions on Indebtedness. The Credit Parties Borrower will not, and will not permit its Subsidiaries or REIT to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iiib) current liabilities of the Credit Parties Borrower or its respective Subsidiaries incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(vd) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(vie) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viif) subject to the provisions of §9, (i) Secured Debt of the Borrower and its Subsidiaries that is Recourse Indebtedness, provided that until the date that Agent first receives written notice from REIT or Borrower that Borrower has obtained an Investment Grade Rating, the aggregate amount of such Indebtedness incurred shall not at any time exceed fifteen percent (15%) of Gross Asset Value, and (ii) Secured Debt of the Borrower and its Subsidiaries, provided that the aggregate amount of such Indebtedness shall not exceed forty percent (40%) of Gross Asset Value;
(g) subject to the provisions of §9, Unsecured Debt of the Borrower and its Subsidiaries and REIT; and
(h) Unsecured Debt between or among any of the REIT, the Borrower and their respective Subsidiaries, provided that any such Indebtedness to which Borrower or any Guarantor shall be an obligor shall be subordinated to the Obligations in a manner reasonably acceptable to the Agent. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(f) above shall be secured by any asset included in the calculation of the Unencumbered Asset Value or any interest therein or any direct or indirect ownership interest in any Subsidiary Guarantor or Unencumbered Property Subsidiary owning such an asset as collateral and (ii) REIT shall not create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any other landowners, government or quasi-government or entity or similar entity in the ordinary course of business in connection with the construction or development of any Real Estate, Indebtedness (including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements pursuant to construct any conditional or pay for onlimited guaranty or indemnity agreement creating liability with respect to usual and customary exclusions from the non-site or offrecourse limitations governing the Non-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith; and
(viii) Other Recourse Indebtedness of the REIT Guarantor and the Borrower (but not any other Credit Party)Person, including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (or otherwise) other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth Indebtedness described in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor 8.1(a)-(e), (other than Borrower or a Subsidiary Guarantorg) from incurring Indebtedness which would be prohibited by the terms of this §8.1)and (h) above.
Appears in 1 contract
Restrictions on Indebtedness. The Credit Parties Company will not, and will ---------------------------- not permit any Subsidiary to, create, incur, issue, assume, suffer to exist or Guarantee any Indebtedness (including, without limitation, Indebtedness owed to Consolidated or its Affiliates), whether or not evidenced by negotiable instruments or securities, or any notes, bonds, debentures or other similar evidences of indebtedness for money borrowed, except for:
(a) trade indebtedness incurred by the Company in the ordinary course of the Company's business on ordinary trade terms and not past due;
(b) the Loans under this Agreement,
(c) unsecured Guarantees by the Company of Indebtedness of Container Supply Cooperatives, provided that the aggregate principal amount of all Indebtedness Guaranteed thereby does not exceed $10,000,000 at any time outstanding;
(d) unsecured interest rate swaps and other similar interest rate hedging arrangements entered into by the Company with one or more Banks or other creditworthy counterparties, which swaps or other arrangements protect the Company against interest rate fluctuations in specific liabilities that appear on the balance sheet of the Company in accordance with GAAP, and which are not entered into for speculative purposes;
(e) unsecured letters of credit backing obligations of the Company or any of its Subsidiaries in respect of workmen's compensation, unemployment insurance and other similar obligations (not constituting Indebtedness) arising in the ordinary course of the Company's or such Subsidiary's business; provided, that the aggregate stated amount of all such letters of credit outstanding at any time, together with all unreimbursed drawings thereunder at such time, shall not exceed $5,000,000; and
(f) additional Indebtedness of the Company in an aggregate principal amount up to but not exceeding $20,000,000 at any time outstanding; provided, that (1) no Subsidiary of the Company shall create, incur, assume, guarantee -------- issue, suffer to exist or be Guarantee any Indebtedness, except for Indebtedness owed to the Company and (2) in no event may the Company or remain liableany Subsidiary sell, contingently factor or otherwiseotherwise make any Disposition of receivables, leases, notes or other accounts, with respect to any Indebtedness other than:
(i) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge Provider;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iii) current liabilities of the Credit Parties incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(iv) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(v) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(vi) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(vii) Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity in the ordinary course of business in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith; and
(viii) Other Indebtedness of the REIT Guarantor and the Borrower (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1)recourse.
Appears in 1 contract
Sources: Loan Agreement (Coca Cola Bottling Co Consolidated /De/)
Restrictions on Indebtedness. The Credit Loan Parties will not create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(i) (x) Indebtedness to the Lenders arising under any of the Loan Documents and Documents, (y) Hedge Obligations to a Lender Hedge Provider, and (z) Indebtedness to any counterparty other than a Lender Hedge Provider with respect to any Derivatives Contract made in the ordinary course of business (and not for speculative purposes);
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iii) current liabilities of the Credit Parties incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(iviii) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(viv) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(viv) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viivi) Indebtedness incurred to any other landowners, government or quasi-quasi- government or entity or similar entity in the ordinary course of business in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith;
(vii) (a) Secured Recourse Indebtedness of Parent Borrower, Parent Guarantor, or IR OpCo as and to the extent not prohibited (and subject to the limitations set forth) in §9.5 and (b) Unsecured Recourse Indebtedness of the Loan Parties as and to the extent not prohibited (and subject to the limitations set forth) in §9.9;
(viii) (a) the Indebtedness set forth on Schedule 8.1 hereto, and any Permitted Refinancing Indebtedness in respect of any such Indebtedness, (b) Indebtedness (including Capitalized Leases) financing the acquisition or replacement of equipment and, limited as to each of the Subsidiary Borrowers, to $25,000.00 per fiscal year, and (c) intercompany Indebtedness of the Loan Parties outstanding from time to time; provided that all such intercompany Indebtedness of any Loan Party owed to any Subsidiary of Parent Guarantor that is not a Loan Party shall be subordinated to the Obligations pursuant to an Intercompany Note;
(ix) Non-Recourse Indebtedness entered into in the ordinary course of business of the Loan Parties (other than a Subsidiary Borrower) (including, without limitation, any Indebtedness referred to in the proviso to the definition of Secured Recourse Indebtedness);
(x) [Reserved];
(xi) Recourse Indebtedness consisting of the Non-Recourse Exclusions in respect of Non-Recourse Indebtedness permitted to be incurred pursuant to §8.2(ix);
(xii) subject to the provisions of §9.5, Indebtedness of the Loan Parties (other than a Subsidiary Borrower) in an amount not to exceed $100,000.00 in the aggregate assumed in connection with an Investment not prohibited by this Agreement and any Permitted Refinancing Indebtedness incurred, issued or otherwise obtained to Refinance (in whole or in part) such Indebtedness; provided that, (A) immediately after giving effect to such Indebtedness, no Event of Default exists or is continuing or would result therefrom, and (B) such Indebtedness is and remains solely the obligation of the Person and/or such Person’s subsidiaries that are acquired and such Indebtedness was not incurred in anticipation of such Investment;
(a) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letters of credit, warehouse receipt or similar facilities entered into 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 (b) Indebtedness represented by letters of credit, to the extent such letters of credit support Indebtedness otherwise permitted under this §8.1(xiii);
(xiv) Indebtedness arising from agreements providing for deferred compensation, indemnification, adjustments of purchase price (including “earnouts”) or similar obligations, in each case entered into in connection with any Investments not prohibited by this Agreement;
(xv) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations incurred in the ordinary course of business and not in connection with the borrowing of money;
(xvi) Indebtedness consisting of obligations to pay insurance premiums arising in the ordinary course of business and not in connection with the borrowing of money;
(xvii) Indebtedness representing deferred compensation to employees, consultants or independent contractors of, Parent Guarantor and its Subsidiaries incurred in the ordinary course of business or in connection with any Investments not prohibited by this Agreement;
(xviii) obligations, under cash management agreements, cash management services and other Indebtedness in respect of netting services, automatic clearing house arrangements, employees’ credit or purchase cards, overdraft protections and similar arrangements in each case incurred in the ordinary course of business;
(xix) Indebtedness comprising take or pay obligations contained in supply agreements entered into the ordinary course of business; and
(viiixx) Other Indebtedness of the REIT Guarantor and the Borrower all customary premiums (but not any other Credit Partyif any), interest (including post-petition and capitalized interest), fees, expenses, charges and additional or contingent interest on obligations described in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantoreach of §8.1(i) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in through §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor8.1(xix) from incurring Indebtedness which would be prohibited by the terms of this §8.1)above.
Appears in 1 contract
Restrictions on Indebtedness. The Credit Parties will not Borrowers shall not, nor permit any of their Subsidiaries to, become or be a guarantor or surety of, or otherwise create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness, or become or be responsible in any manner (whether by agreement to purchase any obligations, stock, assets, goods or services, or to supply or advance any funds, assets, goods or services or otherwise) with respect to any undertaking or Indebtedness of any other Person, or incur any Indebtedness other than:
(ia) Indebtedness to the Lenders Lenders, the Administrative Agent and the Issuing Bank arising under any of this Credit Agreement or the other Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(iib) Unsecured Indebtedness provided that the Credit Parties remain incurrence of guaranty, suretyship or indemnification obligations in compliance connection with the covenants set forth in §9 after incurring such Indebtedness;
(iii) current liabilities Borrowers' performance of the Credit Parties incurred services for their respective customers in the ordinary course of business, including but not limited their businesses;
(c) Indebtedness of one Borrower to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but not incurred through another then existing Borrower;
(i) purchase money Indebtedness incurred in connection with the borrowing acquisition of moneyany real or personal property, or (ii) Indebtedness of any Restricted Subsidiary acquired after the obtaining of credit except for credit on an open account basis customarily extended and in fact extended Closing Date (the "Acquired Subsidiary") originally incurred by the Acquired Subsidiary in connection with normal purchases the lease or acquisition of goods property or fixed assets used in the business of the Acquired Subsidiary or with respect to industrial finance bonds issued to finance the purchase of such property or assets and services;
existing on the date of acquisition of such Acquired Subsidiary; (iii) other unsecured Indebtedness of any Acquired Subsidiary existing on the date of acquisition of such Acquired Subsidiary; (iv) Indebtedness in with respect of taxes, assessments, governmental charges to obligations under Capitalized Leases or levies sale and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
leaseback transactions (without duplication); (v) Indebtedness in respect of judgments only Synthetic Leases, (vi) Indebtedness (other than Subordinated Debt) incurred in connection with acquisitions after the date hereof of any equity interest in, or assets of any Person owing to the extent, seller(s) of such equity interests or assets and (vii) Indebtedness existing as of the Closing Date and listed and described on SCHEDULE 8.1 hereto; PROVIDED THAT (A) any such acquisitions are otherwise permitted pursuant to ss.8.4; (B) the aggregate amount of all Indebtedness under this subsection (d) shall not exceed the lesser of (x) $350,000,000 or (y) reported actual EBITDA for the period prior fiscal year and for an amount (C) the incurrence of any such Indebtedness would not resulting in otherwise create an Event of DefaultDefault under ss.9;
(vie) endorsements Subordinated Debt, provided such Indebtedness is not amended or prepaid, except in accordance with Section 8.11, without the consent of the Majority Lenders, provided further that in the event that after the Closing Date any Restricted Subsidiary of the Parent guarantees any Subordinated Debt, the terms of such guaranty shall provide for collectionthe release of such guaranty upon the sale of stock or all or substantially all of the assets of such Restricted Subsidiary (even if such sale was made in a foreclosure) in substantially the same form of release provision as in the Senior Subordinated Indenture and PROVIDED further that the Obligations hereunder shall be "senior debt";
(f) Indebtedness incurred in respect of Swap Contracts;
(g) Indebtedness of any Borrower incurred to refinance or replace other Indebtedness permitted under this ss.8.1, deposit PROVIDED THAT (i) the principal amount (or negotiation committed principal amount) of such refinancing Indebtedness shall not exceed the outstanding principal amount (or committed principal amount) of the Indebtedness being refinanced and warranties (ii) the terms of products such refinancing Indebtedness are not more onerous in the aggregate to such Borrower than the terms of the Indebtedness being refinanced;
(h) unsecured guarantees of the Parent of any of the Indebtedness permitted in (b) through (g) above;
(i) additional unsecured Indebtedness of the Borrowers in an aggregate amount not to exceed $25,000,000;
(j) Indebtedness of the ES SPV with respect to Permitted Equipment Securitizations which Indebtedness shall be non-recourse to the Borrowers except as permitted in ss.8.1(l) hereof;
(k) other Indebtedness of any Unrestricted Subsidiary which is non-recourse to the Borrowers (except that the capital stock of such Unrestricted Subsidiary may be pledged by the Borrowers to secure such Indebtedness of such Unrestricted Subsidiary);
(l) recourse Indebtedness of the Borrowers with respect to (i) Reimbursement Obligations under the Equipment Securitization L/C, and (ii) lease payment obligations of the Borrowers to the ES SPV (and any guarantees by the Parent in respect thereof) arising in connection with Permitted Equipment Securitizations;
(m) Indebtedness with respect to the indemnification of officers and directors of the Borrowers or services, in each case incurred any Subsidiary in the ordinary course of business;
(viin) contingent Indebtedness with respect to the Series A Preferred Stock and the Series B Preferred Stock, provided that no Distribution shall be made with respect to such Indebtedness; and
(o) any guarantee or sale of recourse promissory notes by any of the Borrowers of Indebtedness of any Person incurred to any other landowners, government or quasi-government or entity or similar entity in the ordinary course of business in connection with the construction purchase of equipment from the Borrowers, the Unrestricted Subsidiaries, or development a manufacturer or supplier of such equipment, provided that the aggregate of all such guarantees of and sales by the Borrowers does not exceed $5,000,000; provided that if the creation, incurrence, assumption or existence of any Real EstateIndebtedness would constitute an Event of Default under, includingor be prohibited pursuant to the terms of, without limitationthe then existing Subordinated Debt, subdivision improvement agreementsthen the creation, development agreementsincurrence, reimbursement agreements, infrastructure development agreements, agreements to construct assumption or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course existence of business in connection with the development of Real Estate or construction of infrastructure in connection therewith; and
(viii) Other such Indebtedness of the REIT Guarantor and the Borrower (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1)permitted hereunder.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Nationsrent Inc)
Restrictions on Indebtedness. The Credit Parties will not, and will not permit their Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(i) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge Provider;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iii) current liabilities of the Credit Parties Borrower or its Subsidiaries incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(iviii) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(viv) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(viv) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viivi) Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity in the ordinary course of business in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith; and;
(vii) To the extent constituting Indebtedness, the redemption obligations set forth in the Partnership Agreement;
(viii) Other Indebtedness of the REIT Guarantor and the Borrower (but not any other Credit Party), including in connection with customary recourse under carve-outs out guaranties and environmental indemnifications on first mortgage or other property related loans of its Subsidiaries that are otherwise permitted hereunder, provided the Borrower shall use commercially reasonably efforts to Indebtedness incurred have any such guaranties or environmental indemnifications be provided by Subsidiaries the REIT Guarantor before being provided by the Borrower;
(ix) Unsecured Debt (other than any Subsidiary Guarantorthe Obligations) of the REIT Guarantor, Borrower and their Subsidiaries provided the REIT Guarantor and (i) the Borrower remain remains in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries 9 and no payment of the REIT Guarantor Obligations is required under §3.2 after giving effect to such Unsecured Debt, and (other than Borrower or ii) no such Indebtedness shall be incurred by a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by Pool Property Owner prior to the terms of this §8.1).Investment Grade Pricing Date;
Appears in 1 contract
Restrictions on Indebtedness. The Credit Parties Borrower will not, and the Borrower will not permit any of the Related Companies or any Controlled Unconsolidated Entity to create, incur, assume, guarantee or be become or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iiib) current liabilities of the Credit Parties Borrower incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(vd) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the period Borrower shall at the time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(vie) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(vii) Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity in the ordinary course of business in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith; and
(viiif) Other Indebtedness listed on Schedule 8.1 hereto and any refinancing of such Indebtedness; provided that any Indebtedness refinancing Indebtedness listed on Schedule 8.1 hereto (i) shall not be secured by any property not collateral for the REIT Guarantor Indebtedness being refinanced, and (ii) such refinancing indebtedness shall not provide greater recourse to Borrower than the Borrower Indebtedness being refinanced (but not except with respect to any other Credit Party), including variations in connection with customary non-recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1outs).
Appears in 1 contract
Sources: Revolving Credit Agreement (Amerivest Properties Inc)
Restrictions on Indebtedness. The Credit Parties Borrower will not, and will not permit its respective Subsidiaries or any of the Guarantors to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iiib) current liabilities of the Credit Parties Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(vd) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of a Default;
(vie) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viif) subject to the provisions of §9, Recourse Indebtedness incurred which is Secured Debt, provided that the aggregate amount of such Recourse Indebtedness which is Secured Debt outstanding at any one time (not including the Loans or Letter of Credit Liabilities to the extent the same shall at any other landowners, government or quasitime constitute Recourse Indebtedness which is Secured Debt) shall not exceed seven and one-government or entity or similar entity in half percent (7.5%) of Consolidated Total Asset Value (provided that the ordinary course aggregate amount of business in connection with the construction or development such Recourse Indebtedness which is Secured Debt outstanding at any one time may exceed such limit by an additional two and one-half percent (2.5%) of Consolidated Total Asset Value (for a total of ten percent (10.0%) of Consolidated Total Asset Value) so long as any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course such excess consists solely of business in connection with the development of Real Estate or construction of infrastructure in connection therewith; andEquity Pledge Secured Debt permitted by §8.1(i) below);
(viiig) Other Non-Recourse Indebtedness of the REIT Guarantor and the Borrower (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries of Parent (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor Borrower that directly or indirectly own or lease a Subject Property);
(other than h) Non-Recourse Indebtedness of Borrower or a Guarantor constituting purchase money indebtedness or incurred in connection with equipment financing, not to exceed $4,000,000.00 in the aggregate outstanding at any time;
(i) Equity Pledge Secured Debt of Parent or a Subsidiary Guarantorof Parent, provided that the aggregate amount of Consolidated Total Equity Pledge Secured Debt (not including the Loans or Letter of Credit Liabilities to the extent the same shall at any time constitute Equity Pledge Secured Debt) from incurring outstanding at any one time shall not exceed ten percent (10.0%) of Consolidated Total Asset Value;
(j) subject to the provisions of §9, Unsecured Debt which is pari passu with the Indebtedness which would described in clause (a) above, provided, that, unless the Borrower and/or Parent has obtained an Investment Grade Rating, the aggregate amount of such Unsecured Debt outstanding at any one time shall not exceed twelve and one-half percent (12.5%) of Consolidated Total Asset Value; provided, further, that if after obtaining an Investment Grade Rating, Borrower and/or Parent shall lose such Investment Grade Rating, the foregoing limitation shall be prohibited by reinstated one hundred twenty (120) days after Borrower and/or Parent receive notification of the terms loss of this §8.1).such Investment Grade Rating; and
Appears in 1 contract
Restrictions on Indebtedness. The Credit Parties Borrowers will not, and will not permit the REIT Guarantor to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(i) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge Provider;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iii) current liabilities of the Parent Borrower and the Subsidiary Credit Parties incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(iviii) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(viv) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(viv) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viivi) Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity in the ordinary course of business in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith; and;
(vii) Indebtedness of the REIT Guarantor under carve-out guaranties and environmental indemnifications on first mortgage or other property related loans;
(viii) Other Indebtedness of the REIT Guarantor and the Borrower certain of their Subsidiaries (but not any Subsidiaries that are Credit Parties) under the Equity Line;
(ix) the REIT Guarantor will not incur any Indebtedness other Credit Party), including in connection with customary recourse than (i) Indebtedness under guaranties of the REIT Guarantor consisting of carve-outs out guaranties and environmental indemnifications on first mortgage or other property related loans; (ii) Indebtedness under the Guaranty; and (iii) other Indebtedness (which shall include the amounts outstanding under the Equity Line and recourse guaranties related to Indebtedness incurred by Subsidiaries of Subsidiaries) in an aggregate amount at any one time not in excess of ten percent (other than 10%) of Total Asset Value; provided that such limit in this subclause (iii) shall increase to fifteen percent (15%) of Total Asset Value from and after the date when REIT Guarantor shall have delivered financial statements described in §7.4(a) or (b) evidencing Total Asset Value of $1,500,000,000 or more; and
(x) Indebtedness of a Permitted Exchange Property Owner under the applicable Exchange Loan; provided that such Exchange Loan shall be subject to an Exchange Loan Subordination Agreement. Notwithstanding anything in this Agreement to the contrary, none of the Indebtedness described in §8.1 above shall have any of the Collateral Properties or any interest therein or any direct ownership interest in any Subsidiary Guarantor) Credit Party as collateral, a borrowing base, asset pool or any similar form of credit support for such Indebtedness (provided that the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than the Parent Borrower or a and any Subsidiary GuarantorCredit Party) from incurring to incur Indebtedness which would be prohibited by the terms of this §8.1).
Appears in 1 contract
Sources: Credit Agreement (Bluerock Residential Growth REIT, Inc.)
Restrictions on Indebtedness. The Credit Parties Borrower will not, and will not permit any of its Subsidiaries to, create, incur, assume, guarantee or be become or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders Banks and the Agent arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iiib) current liabilities of the Credit Parties Borrower or such Subsidiary incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but business not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8Section 5.8 hereof;
(vd) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the period Borrower or such Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(vie) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viif) Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity in respect of documentary letters of credit issued in the ordinary course of business business;
(g) Indebtedness of the Borrower in respect of interest rate protection arrangements and exchange rate protection arrangements;
(h) Indebtedness existing on the Closing Date and listed and described on SCHEDULE 6.1(h) hereto or any refinancing thereof on substantially similar terms as the Indebtedness being refinanced;
(i) Subordinated Debt;
(j) obligations under Capitalized Leases;
(k) Indebtedness incurred by the Borrower and its Subsidiaries under the Securitization;
(l) Indebtedness in respect of (i) intercompany loans and guaranties from the Borrower to any of its Subsidiaries or of any of its Subsidiaries' obligations or (ii) intercompany loans and guaranties between Subsidiaries of the Borrower or (iii) intercompany loans and guaranties from any Guarantor to the Borrower or of any of the Borrower's obligations or (iv) guaranties from any Subsidiary of the Borrower of any of the Borrower's obligations, PROVIDED that the Investments corresponding to such Indebtedness are permitted under Sections 6.3(j) or 6.3(k) hereof;
(m) Indebtedness incurred in connection with the construction or development acquisition after the Closing Date of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements real or personal property by the Borrower or any Subsidiary of the Borrower as contemplated by Section 6.2(ix) hereof;
(n) Indebtedness of the Borrower and its Subsidiaries in respect of Investments in and contingent obligations to construct or pay for onmake Investments in non-site or off-site improvements and similar agreements incurred in Guarantor Subsidiaries; PROVIDED THAT the ordinary course of business in connection with the development of Investments corresponding to such Indebtedness are permitted under Section 6.3(k) hereof;
(o) Indebtedness secured by a lien on Real Estate of the Borrower or construction its Subsidiaries; PROVIDED that the aggregate amount of infrastructure Indebtedness permitted pursuant to this Section 6.1(o) shall not, at any time, exceed the fair market value of the ReaL Estate securing such Indebtedness;
(p) other Indebtedness of the Borrower and its Subsidiaries (whether or not such Subsidiaries are Guarantors), PROVIDED that (i) with respect to Indebtedness incurred by the Borrower or a Guarantor, such Indebtedness contains covenants that are no more restrictive on the Borrower or such Guarantor than the covenants contained in connection therewiththis Credit Agreement and (ii) immediately after such incurrence of Indebtedness, and after giving effect thereto on a PRO FORMA basis, no Default or Event of Default shall then exist;
(q) Indebtedness of the Borrower and its Subsidiaries incurred pursuant to that certain Revolving Credit Agreement, dated as of November 13, 1997, as amended, by and among the Borrower, the lending institutions party thereto, Fleet National Bank (f/k/a BankBoston, N.A.), as administrative and documentation agent for such lending institutions, The Chase Manhattan Bank, as syndication agent for such lending institutions, and the co-agents named therein; and
(viiir) Other Indebtedness consisting of Investments permitted under Section 6.3(n) hereof. Notwithstanding the foregoing, at no time shall the aggregate amount of Indebtedness of the REIT Guarantor Borrower and its Subsidiaries consisting of guaranties and other Contingent Liabilities (excluding (i) Indebtedness permitted pursuant to Section 6.1 to the extent such Indebtedness (or if such Indebtedness is a Contingent Liability of the Borrower and/or its Subsidiaries, the underlying Indebtedness relating to such Contingent Liability) is included in the calculation of Total Funded Indebtedness) and (but not any other Credit Party)ii) obligations in respect of documentary letters of credit) exceed, including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) the aggregate, 15% of the REIT Guarantor, provided the REIT Guarantor and Stockholders' Equity of the Borrower remain at such time. For purposes of this Section, the amount of Contingent Liabilities in compliance with respect of interest rate protection arrangements and exchange rate protection arrangements permitted under Section 6.1(g) at any time shall be the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries net liability of the REIT Guarantor (other than Borrower or and its Subsidiaries under such arrangements at such time, calculated on a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by basis satisfactory to the terms of this §8.1)Agent in accordance with accepted practice.
Appears in 1 contract
Restrictions on Indebtedness. The Credit Parties Borrower will not, and will not permit any of its Subsidiaries to, create, incur, assume, guarantee or be become or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders and the Agent arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iiib) current liabilities of the Credit Parties Borrower or such Subsidiary incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but business not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8section 5.8 hereof;
(vd) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the period Borrower or such Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(vie) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viif) Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity in respect of documentary letters of credit issued in the ordinary course of business business;
(g) Indebtedness of the Borrower in respect of interest rate protection arrangements and exchange rate protection arrangements;
(h) Indebtedness existing on the Closing Date and listed and described on SCHEDULE 6.1 hereto or any refinancing thereof on substantially similar terms as the Indebtedness being refinanced;
(i) Subordinated Debt;
(j) obligations under Capitalized Leases;
(k) Indebtedness incurred by the Borrower and its Subsidiaries under the Securitization;
(l) Indebtedness in respect of intercompany loans, guaranties and, so long as no Default or Event of Default shall have occurred and be continuing at the time such Indebtedness is incurred, other Investments and contingent obligations to make Investments, (i) from the Borrower to any of its Subsidiaries or of any of its Subsidiaries' obligations or (ii) between Subsidiaries of the Borrower or of any of the Borrower's Subsidiaries' obligations, or (iii) from any Subsidiary of the Borrower to the Borrower or of any of the Borrower's obligations;
(m) Indebtedness incurred in connection with the construction or development acquisition after the Closing Date of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct real or pay for on-site personal property by the Borrower or off-site improvements and similar agreements incurred in any Subsidiary of the ordinary course of business in connection with the development of Borrower as contemplated by section 6.2(ix) hereof;
(n) Indebtedness secured by a lien on Real Estate of the Borrower or construction its Subsidiaries; PROVIDED that the aggregate amount of infrastructure Indebtedness permitted pursuant to this section 6.1(n) shall not, at any time, exceed the fair market value of the Real Estate securing such Indebtedness;
(o) other Indebtedness of the Borrower and its Subsidiaries (whether or not such Subsidiaries are Guarantors), PROVIDED that (i) with respect to Indebtedness incurred by the Borrower or a Guarantor, such Indebtedness contains covenants that are no more restrictive on the Borrower or such Guarantor than the covenants contained in connection therewiththis Credit Agreement and (ii) immediately after such incurrence of Indebtedness, and after giving effect thereto on a PRO FORMA basis, no Default or Event of Default shall then exist;
(p) Indebtedness consisting of Investments permitted under section 6.3(m) hereof; and
(viiiq) Other Indebtedness payable at the election of the Borrower by the issuance of the Borrower's capital stock. Notwithstanding the foregoing, at no time shall the aggregate amount of Indebtedness of the REIT Guarantor Borrower and its Subsidiaries consisting of guaranties and other Contingent Liabilities (excluding (i) Indebtedness permitted pursuant to section 6.1 to the extent such Indebtedness (or if such Indebtedness is a Contingent Liability of the Borrower and/or its Subsidiaries, the underlying Indebtedness relating to such Contingent Liability) is included in the calculation of Consolidated Total Funded Debt) and (but not any other Credit Party)ii) obligations in respect of documentary letters of credit) exceed, including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) the aggregate, 15% of the REIT Guarantor, provided the REIT Guarantor and Stockholders' Equity of the Borrower remain at such time. For purposes of this Section, the amount of Contingent Liabilities in compliance with respect of interest rate protection arrangements and exchange rate protection arrangements permitted under section 6.1(g) at any time shall be the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries net liability of the REIT Guarantor (other than Borrower or and its Subsidiaries under such arrangements at such time, calculated on a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by basis satisfactory to the terms of this §8.1)Agent in accordance with accepted practice.
Appears in 1 contract
Restrictions on Indebtedness. The Credit Parties Guarantor will not (other than solely as a result of its status as a general partner of the Borrower) create, incur, assume, guarantee or be or remain liable, contingently or otherwise with respect to any Indebtedness other than the Obligations and any Indebtedness of the Borrower permitted under the terms of this Section 8.
1. The Borrower will not, and will not permit any of its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders Banks arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iiib) current liabilities of the Credit Parties Borrower or its Subsidiaries incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §Section 7.8;
(vd) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the period Borrower shall at the time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(vie) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viif) subject to the provisions of Section 9, (i) Non-recourse Indebtedness of the Borrower or any of its Subsidiaries, provided that neither the Borrower nor any of its Subsidiaries shall incur any Non-recourse Indebtedness unless the Borrower shall have provided to the Banks a statement that no Default or Event of Default exists and a Compliance Certificate demonstrating that the Borrower will be in compliance with the covenants referred to therein after giving effect to such incurrence, and environmental indemnities and customary exceptions to exculpatory language shall be permitted in any such Non-recourse Indebtedness, and (ii) Indebtedness incurred of Borrower under environmental indemnities and guarantees with respect to customary exceptions to exculpatory language with respect to Non-recourse Indebtedness of its Subsidiaries or joint ventures permitted pursuant to Section 8.3(k) (provided that in the event any claim is made against Borrower or any of its Subsidiaries with respect to such indemnities or exceptions, the amount so claimed shall be considered a recourse liability of such Person);
(g) Indebtedness in respect of reverse repurchase agreements having a term of not more than one hundred eighty (180) days with respect to Investments described in Section 8.3(d) or (e);
(h) subject to the provisions of Section 9, other landownersunsecured recourse Indebtedness of the Borrower and its Subsidiaries in an aggregate outstanding principal amount (excluding the Obligations) not exceeding $5,000,000.00; provided that neither the Borrower nor any of its Subsidiaries shall incur any recourse Indebtedness described in this Section 8.1(h) unless the Borrower shall have provided to the Banks a statement that no Default or Event of Default exists and a Compliance Certificate demonstrating that the Borrower will be in compliance with the covenants referred to therein after giving effect to such incurrence;
(i) Indebtedness in respect of purchase money financing for equipment, government or quasi-government or entity or similar entity computers and vehicles acquired in the ordinary course of the Borrower's business not exceeding $1,000,000.00;
(j) subject to the provisions of Section 9, recourse debt to obtain a construction loan or loans or obligations under completion guarantees in an aggregate amount not exceeding $70,000,000.00; provided that the liability under any completion guaranty shall equal the remaining costs to complete the applicable construction project in excess of construction loan or mezzanine loan proceeds available therefor and any equity deposited or invested for the payment of such costs;
(k) subject to the provisions of Section 9, other secured recourse Indebtedness in a principal amount not to exceed $110,000,000.00;
(l) subject to the provisions of Section 9, Indebtedness arising under any Interest Rate Contract required by the holder of Indebtedness described in Section 8.1(k), provided that any such Indebtedness does not materially exceed the Indebtedness under the Interest Rate Contract required by the Revolving Credit Agreement as of the date hereof;
(m) subject to the provisions of Section 9, unsecured Indebtedness of Borrower under guarantees of loans made to employees of Guarantor to purchase stock in Guarantor, provided that such Indebtedness does not exceed $15,000,000.00 in the aggregate;
(n) subject to the provisions of Section 9, other unsecured recourse Indebtedness of the Borrower and its Subsidiaries in an aggregate outstanding principal amount not exceeding $5,000,000.00 in connection with the construction issuance of letters of credit on behalf of Borrower or development any of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewithits Subsidiaries; and
(viiio) Other subject to the provisions of Section 9, unsecured Indebtedness under guarantees to joint venture partners relating to the repurchase of the REIT Guarantor and the Borrower (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) ownership interests of the REIT Guarantorsuch joint venture partners, provided that such Indebtedness does not exceed $15,000,000.00 in the REIT Guarantor aggregate, and provided further that any such guaranty may at the Borrower remain option of Agent not be considered as Indebtedness for the purposes of Section 9.1 of this Agreement in compliance with the covenants set forth event that Agent shall determine in §§9.1 through 9.5 after incurring its sole discretion that circumstances relating to the Real Estate to which such Indebtedness. The foregoing shall guaranty relates are such that it is not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which likely that such guaranty would be prohibited by the terms of this §8.1)called upon.
Appears in 1 contract
Sources: Unsecured Term Loan Agreement (Ramco Gershenson Properties Trust)
Restrictions on Indebtedness. The Credit Subject to the further restrictions of §9.1, the Loan Parties will not, and will not permit any of their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(i) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderObligations;
(ii) Unsecured Indebtedness provided of Borrower to any Subsidiary that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtednessis a Guarantor or Indebtedness of any Subsidiary to Borrower or another Subsidiary that is a Guarantor;
(iii) current to the extent constituting Indebtedness, liabilities of the Credit Parties incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(iv) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(iv) contingent obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under §8.8;
(v) Indebtedness in respect of judgments only to the extent, for the period and for an amount or awards that would not resulting in constitute an Event of Default;
(vi) obligations under any Hedge Agreement incurred in the ordinary course of business for bona fide hedging purposes;
(vii) Indebtedness owing to insurance carriers or finance companies and incurred to finance insurance premiums of any Loan Party in the ordinary course of business in a principal amount not to exceed at any time the amount of such insurance premiums to be paid by such Loan Party;
(viii) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds in the ordinary course of business, or pursuant to netting services or otherwise in connection with deposit accounts;
(ix) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viix) Indebtedness incurred to any other landownersin connection with surety (or similar) bonds, government or quasi-government or entity or similar entity letters of credit and performance bonds obtained in the ordinary course of business in connection with workers’ compensation obligations of the construction Loan Parties and in connection with other surety and performance bonds and Mineral Activity in the ordinary course of business (including to assume the proper plugging and abandonment of oil and gas drilling or development production platform removal obligations);
(xi) Permitted Existing Indebtedness, including any Permitted Refinancing Indebtedness;
(xii) Non-Recourse Indebtedness (including the Loan Parties’ share of Non-Recourse Indebtedness incurred by any Joint Venture) in an aggregate principal amount not exceeding $250,000,000 at any time, provided that (a) if such Non-Recourse Indebtedness is secured, such Non-Recourse Indebtedness is secured solely by either (1) property wholly owned by Borrower or its Subsidiaries that is not included in the Borrowing Base, (2) property wholly owned by a Joint Venture, or (3) Non-Recourse Assets, (b) Borrower shall have provided Agent (if requested by Agent) with true, correct and complete copies of the substantially final operative loan documents with respect to such Indebtedness at least five (5) Business Days prior to the incurrence of such Indebtedness, (c) Borrower shall have provided to Agent a certificate that (i) no Default or Event of Default exists or would be caused by the incurrence of such Indebtedness, (ii) the leverage ratio of such Non-Recourse Indebtedness relative to the value of the Real Estate securing the same shall, at the time such Indebtedness is incurred, be less than seventy-five percent (75%) (or eighty-five percent (85%) in the case of such Indebtedness in respect of Multifamily Properties), and (iii) with respect to any Non-Recourse Indebtedness of a Joint Venture, a portion of which is allocable to the Loan Parties for purposes of this §8.1(xii), the leverage ratio of such Non-Recourse Indebtedness of such Joint Venture relative to the value of the Real Estate of such Joint Venture securing the same, shall at the time such Indebtedness is incurred, be less than seventy-five percent (75%) (or eighty-five percent (85%) in the case of such Indebtedness in respect of Multifamily Properties);
(xiii) Indebtedness (other than Non-Recourse Indebtedness or Bond Indebtedness) in an aggregate principal amount not exceeding $125,000,000 at any time (including the portion of all Joint Venture Indebtedness that is recourse to any Loan Party and the portion of any Real EstateNon-Recourse Indebtedness that is guaranteed by any Loan Party), includingprovided that (a) if such Indebtedness is secured, without limitationsuch Indebtedness is secured solely by property wholly owned by either by Borrower or its Subsidiaries that is not included in the Borrowing Base, subdivision improvement agreementsor by property wholly owned by a Joint Venture, development agreementsand (b) Borrower shall have provided to Agent a certificate that (i) no Default or Event of Default exists or would be caused by the incurrence of such Indebtedness, reimbursement agreements(ii) the leverage ratio of such Indebtedness relative to the value of the property securing the same shall, infrastructure development agreementsat the time such Indebtedness is incurred, agreements be less than seventy-five percent (75%) (or eighty-five percent (85%) in the case of such Indebtedness in respect of Multifamily Properties), and (iii) with respect to construct any Indebtedness of a Joint Venture, a portion of which is allocable to the Loan Parties for purposes of this §8.1(xiii), the ratio of such Indebtedness of such Joint Venture relative to the value of the Joint Venture’s property securing the same, shall, at the time such Indebtedness is incurred, be less than seventy-five percent (75%) (or pay eighty-five percent (85%) in the case of such Indebtedness in respect of Multifamily Properties); provided, however, that the portion of any secured surety bond Indebtedness in excess of $15,000,000 permitted pursuant to §8.1(xiv) shall be counted against the $125,000,000 limit provided in this paragraph;
(xiv) surety, statutory or appeal bonds or similar obligations incurred in the ordinary course of business under which the Loan Parties’ collective potential exposure shall not at any time exceed $75,000,000, of which up to $25,000,000 may be secured by Liens pursuant to §8.2(iii);
(xv) Indebtedness under Commodity Hedge Agreements incurred for on-site bona fide hedging purposes up to a maximum aggregate exposure at any time of $25,000,000; provided that the aggregate exposure amount may exceed such maximum amount for a period not to exceed five (5) consecutive Business Days;
(xvi) Bond Indebtedness in an aggregate principal amount not exceeding $300,000,000 at any time, provided that (a) such Indebtedness is either unsecured or off-site improvements secured as permitted by §8.2(xviii), (b) Borrower shall have provided to Agent a certificate that no Default or Event of Default exists or would be caused by the incurrence of such Indebtedness, giving pro forma effect to any repayment of Indebtedness with the net cash proceeds of such Bond Indebtedness, (c) if such Bond Indebtedness is not Convertible Bond Indebtedness, the net cash proceeds from the issuance thereof must be applied first to the repayment in full of the Term Loan and similar thereafter may be used for general corporate purposes (it being understood and agreed that the net cash proceeds from the issuance of Convertible Bond Indebtedness shall not be required to be applied to prepay the Loans), and (d) if such Bond Indebtedness is Convertible Bond Indebtedness and a Call Option Overlay is entered into in conjunction therewith, the terms of such Call Option Overlay shall be those customary for such transactions; and
(xvii) amounts owed by any Loan Party to operators of Oil and Gas Properties under applicable joint operating agreements incurred in the ordinary course of business and which are not overdue, obligations consisting of indemnities under division orders and obligations with regard to royalties, overriding royalties and working interest revenues in connection with the development ordinary course of Real Estate or construction of infrastructure in connection therewith; and
(viii) Other Indebtedness of the REIT Guarantor and the Borrower (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1)business.
Appears in 1 contract
Sources: Revolving and Term Credit Agreement (Forestar Group Inc.)
Restrictions on Indebtedness. The Credit Parties Borrower will not createnot, nor will it permit any Subsidiary of Borrower to, issue, incur, assume, guarantee or be or remain liablecreate, become liable for, contingently or otherwise, with respect or have outstanding any Indebtedness; provided, however, that the foregoing provisions shall not restrict nor operate to any Indebtedness other thanprevent the following Indebtedness:
(ia) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderObligations;
(iib) Unsecured Non-Recourse Indebtedness provided that of any Project Finance Subsidiary;
(c) so long as the Credit Parties remain Borrower would be in compliance with Section 7.17 hereof (calculated as of the covenants date of, and after giving affect to, the incurrence of such Indebtedness), secured Indebtedness (excluding Indebtedness of the type described in (e), (f), and (g) below but including the pledge of stock or similar equity interest of any Project Finance Subsidiary or any Subsidiary which is an entity whose sole purpose and extent of business activities is to own the stock or similar equity interest of such Project Finance Subsidiary) (A) set forth in §9 after incurring such Indebtedness;
on Schedule 7.15(b) hereto, (iiiB)(i) current liabilities of the Credit Parties incurred in the ordinary course of businessBHP, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but not incurred through (i) the borrowing of money, or (ii) evidencing the obtaining deferred purchase price of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(iv) Indebtedness in respect of taxes, assessments, governmental charges newly acquired property or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(v) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(vi) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(vii) Indebtedness incurred to any other landowners, government finance the acquisition of personal property of the Borrower or quasi-government or entity or similar entity a Subsidiary of the Borrower used in the ordinary course of business of the Borrower or Subsidiary, (iii) constituting Capitalized Lease Obligations or with respect to synthetic (or similar type) lease arrangements, or (iv) incurred in connection with the construction performance of tenders, statutory obligations, bids, leases or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay other similar obligations (other than for on-site or off-site improvements and similar agreements incurred borrowed money) entered into in the ordinary course of business or to secure obligations on performance bonds; provided, that the aggregate amount of Indebtedness permitted by clause (B)(iv) of this Section 7.15(c) at any time outstanding shall not exceed 5% of Consolidated Assets as reflected on the most recent balance sheet delivered by the Borrower pursuant to Section 7.6, (C) of CLF&P issued or outstanding under the CLF&P Indenture, and (D) first mortgage bond debt which is issued or incurred by Black Hills Utility Holdings, Inc. or any of its direct or indirect Subsidiaries to finance the design, permitting, construction, ownership, operation or maintenance of power plants in connection the State of Colorado which does not mature prior to the Termination Date, as extended from time to time in accordance with the development terms hereof, and is not in excess of Real Estate an amount equal to fifty percent (50%) of the net book value of the property, plant and equipment of Black Hills Utility Holdings, Inc. (as reported in the most recent quarterly financial statements which were prepared in accordance with GAAP); provided, Borrower shall promptly provide the Administrative Agent with a copy of any documentation evidencing such Indebtedness in excess of $25,000,000 and any modification to such Indebtedness;
(d) so long as the Borrower would be in compliance with Section 7.17 hereof (calculated as of the date of, and after giving affect to, the incurrence of such Indebtedness), other Indebtedness (excluding Indebtedness of the type described in (e), (f), and (g) below) which is unsecured and either junior in right of payment to the Obligations or construction pari passu to the Obligations or is equally and ratably secured with the Obligations, provided that Borrower shall promptly provide the Administrative Agent with a copy of infrastructure any documentation evidencing such Indebtedness in connection therewithexcess of $25,000,000 and any modification to such Indebtedness;
(e) intercompany loans (i) from (x) Subsidiary to Borrower so long as such loans are subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent, and (y) Borrower to a Subsidiary of Borrower, (ii) among Wholly-Owned Subsidiaries, and (iii) from a Subsidiary of Borrower to a Marketing Subsidiary, so long as the aggregate amount of such loans from time to time owing by the Marketing Subsidiaries does not exceed the difference between (I) the Marketing Subsidiary Sublimit, less (II) the sum of (A) the aggregate amount of Guaranties outstanding pursuant to Section 7.15(f), and (B) the aggregate amount of other Investments then made in the Marketing Subsidiaries pursuant to Section 7.14(o)(ii) (it being understood that to the extent such limit is exceeded solely as a result of an increase in the value of any such Investment attributable to the undistributed net earnings of the Marketing Subsidiaries, it shall not be deemed a violation of this Section 7.15(e));
(f) Indebtedness consisting of Guaranties of the Indebtedness of the Marketing Subsidiaries (including Long-Term Guaranties), provided that such Indebtedness shall only be permitted to the extent the aggregate amount of such Indebtedness, when added to the sum of (i) the aggregate amount of all intercompany loans made to the Marketing Subsidiaries pursuant to Section 7.15(e), plus (ii) the aggregate amount of all other Investments made in Marketing Subsidiaries pursuant to Section 7.14(o)(ii), plus (iii) the aggregate amount of L/C Obligations outstanding attributable to Marketing Subsidiary Letters of Credit, does not exceed the Marketing Subsidiary Sublimit (it being understood that to the extent such limit is exceeded solely as a result of an increase in the value of any such Investment attributable to the undistributed net earnings of the Marketing Subsidiaries, it shall not be deemed a violation of this Section 7.15(f)) provided, further that Borrower shall promptly provide the Administrative Agent with a copy of any such Guarantee and any modification to such Guarantee;
(g) Indebtedness of the Marketing Subsidiaries under Marketing Subsidiary Excluded Credit Facilities in an aggregate amount not to exceed the Marketing Subsidiary Indebtedness Limit;
(h) Permitted Derivative Obligations; and
(viiii) Other Indebtedness of the REIT Guarantor and the Borrower (but not any other Credit Party), including in connection with customary recourse carvepursuant to Long-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries Term Guaranties (other than any Subsidiary GuarantorLong-Term Guaranties of Indebtedness of Marketing Subsidiaries). Indebtedness shall only be permitted under (e), (f), (h), and (i) above to the extent such Indebtedness will have a priority of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance payment with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other Obligations which is no greater than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1)pari passu.
Appears in 1 contract
Restrictions on Indebtedness. The Credit Parties Except with the prior written consent of the Requisite Lenders, the Borrower will not, and the Borrower will not permit any Guarantor or any of the Related Companies to create, incur, assume, guarantee or be become or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(b) Indebtedness that constitutes an Investment pursuant to the definition of Investments and that does not cause a violation of §8.2;
(c) Indebtedness outstanding on the date hereof, as listed on Schedule 8.1(c), and any refinancings, refundings, replacements, renewals or extensions (“refinancings”) thereof, provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing except by an amount equal to the sum of unpaid accrued interest and the premium 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) Unsecured the final maturity of the refinancing Indebtedness provided that shall not be earlier than the Credit Parties remain in compliance with final maturity of the covenants set forth in §9 after incurring such refinanced Indebtedness;
(iiid) current liabilities of the Credit Parties incurred obligations (contingent or otherwise) existing or arising under any Interest Rate Contracts; provided, that such obligations are (or were) entered into by such Person in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but not incurred through ; or
(i) Indebtedness on margined securities which exceed fifty (50%) percent of the borrowing value of moneysecurities owned by Borrower, such value to be determined at the time of borrowing, or (ii) enter into, assume or suffer to exist any other line of credit, except the obtaining Loan and the margin line of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(iv) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(v) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(vi) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(vii) Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity in the ordinary course of business in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith; and
(viii) Other Indebtedness of the REIT Guarantor and the Borrower (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1)referenced above.
Appears in 1 contract
Sources: Credit Agreement (Monmouth Real Estate Investment Corp)
Restrictions on Indebtedness. The Credit Parties Borrower will not, and will not permit any of its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders Banks arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iiib) current liabilities of the Credit Parties Borrower or its Subsidiaries incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements letters of credit not to exceed $500,000 1,500,000.00 in the aggregate at any timeaggregate, but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §Section 7.8;; 50
(vd) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the period Borrower shall at the time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(vie) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viif) subject to the provisions of Section 9, Non-recourse Indebtedness incurred of the Borrower or any Subsidiary of the Borrower related to any other landowners, government or quasi-government or entity or similar entity in the ordinary course of business in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development acquisition of Real Estate or construction a refinance of infrastructure the Prudential Loan in connection therewithan aggregate outstanding principal amount not to exceed thirty-five percent (35%) of the value of the Consolidated Total Assets of the Borrower, adjusted pursuant to Section 9.7;
(g) Indebtedness in respect of reverse repurchase agreements having a term of not more than 180 days with respect to Investments described in Section 8.3(d) or (e);
(h) The Prudential Loan, provided the Prudential Loan shall remain Non-recourse as to the Borrower;
(i) Indebtedness not to exceed $2,000,000.00 in the aggregate in respect of note purchase agreement(s) relating to loans made to executive officers of the Borrower for the purchase of shares of beneficial interest in the Borrower; and
(viiij) Other Indebtedness unsecured Debt Offerings which have been granted an Investment Grade Rating by either of the REIT Guarantor and Rating Agencies at the time of issuance provided (i) at the time such Indebtedness is issued the scheduled maturity date of such Indebtedness is not sooner than six (6) days after the Maturity Date (after giving effect to any extension of the Maturity Date which may have been requested by the Borrower (but prior to the issuance of such Indebtedness or approved by the Banks, whether or not any other Credit Partythe same has become effective), including and (ii) Borrower shall exercise its best efforts to ensure that any covenants or restrictions imposed upon the Borrower, the Guarantor or their respective Subsidiaries in connection with customary recourse carve-outs such Indebtedness shall not individually or in the aggregate be more restrictive against the Borrower, the Guarantor and environmental indemnifications related their respective Subsidiaries than the covenants and restrictions imposed pursuant to this Agreement or the other Loan Documents, but in any event, the covenants and restrictions imposed in connection with such Indebtedness incurred by shall not be more restrictive than the covenants and restrictions contained in Section 8.1, Section 8.2, Section 8.3, Section 8.7 and Section 9 of this Agreement; and provided further that neither the Borrower, Guarantor nor any of their respective Subsidiaries (other than shall incur any Subsidiary Guarantor) of the REIT GuarantorIndebtedness described in this Section 8.1(j) unless it shall have provided to the Banks prior written notice of the proposed issuance of such Indebtedness, provided the REIT Guarantor a statement that no Default or Event of Default exists and a certificate that the Borrower remain will be in compliance with the its covenants set forth in §§9.1 through 9.5 referred to herein after incurring giving effect to such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1).incurrence; and
Appears in 1 contract
Sources: Revolving Credit Agreement (Meridian Industrial Trust Inc)
Restrictions on Indebtedness. The Credit Parties Borrower will not, and will not permit any of its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders Banks and the Agent arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iii) current liabilities of the Credit Parties incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(iv) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(v) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(vib) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viic) Indebtedness arising under the New Notes, Indebtedness arising under the ▇▇▇▇▇▇ Facility, Indebtedness arising under the Textron Facility, and Indebtedness arising under the Inventory and Receivables Facility;
(d) Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity in the ordinary course of business in connection with the construction or development acquisition after the date hereof of any Real Estatereal or personal property by the Borrower or any Subsidiary of the Borrower or under any Capitalized Lease, includingprovided that the aggregate principal amount of such Indebtedness incurred by the Borrower and its Subsidiaries shall not exceed the aggregate amount of $2,000,000 per calendar year;
(e) Indebtedness arising under a revolving credit facility secured by a pledge of loans made by the Borrower to consumer borrowers (and the related mortgages or deeds of trust on Timeshare Interests purchased by the consumer borrowers, without limitationwhich loans have not been pledged to any Person by the Borrower); provided that such Indebtedness shall be incurred only if (A) no Default or Event of Default has occurred and is continuing or will result therefrom, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred (B) in the ordinary course reasonable opinion of business the Agent, such Indebtedness is substantially similar in connection with structure to this Credit Agreement, and (C) the development aggregate outstanding principal amount of Real Estate or construction such Indebtedness shall not exceed $20,000,000 at any time or, if the aggregate outstanding principal amount of infrastructure such Indebtedness shall exceed $20,000,000, the Agent shall have provided its prior written consent thereto (which consent will not be unreasonably withheld);
(f) Indebtedness in connection therewithrespect of the sale of "receivables" described in clause (vii) of the definition of Indebtedness, to the extent permitted by Section 8.5.2 hereof; and
(viiig) Other Indebtedness of the REIT Guarantor existing on November 1, 2001 and the Borrower (but not any other Credit Party), including in connection with customary recourse carve-outs listed and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1)described on SCHEDULE 8.1 hereto.
Appears in 1 contract
Sources: Revolving Credit Agreement (Silverleaf Resorts Inc)
Restrictions on Indebtedness. The Credit Parties Borrower will not, and will not permit its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iiib) current liabilities of the Credit Parties Borrower or its Subsidiaries incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(vd) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an a Default or Event of Default;
(vie) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
f) subject to the provisions of §9, Non-Recourse Indebtedness of the Borrower and its Subsidiaries (viiother than the Guarantors, the Unencumbered Property Subsidiaries or any other Subsidiary of Borrower or a Controlled JV Entity owning an interest in a Guarantor or an Unencumbered Property Subsidiary); provided that the Borrower may provide a guaranty or indemnity with respect to Non-Recourse Exclusions in connection with such Non-Recourse Indebtedness; and
g) subject to the provisions of §9, Indebtedness incurred (other than Non-Recourse Indebtedness) of Borrower and its Subsidiaries. Notwithstanding anything in this Agreement to the contrary, (i) none of the Guarantors, if any, nor Unencumbered Property Subsidiaries (including without limitation any Controlled JV Entity which owns a Controlled JV Entity) shall create, incur, assume, guarantee or be or remain liable contingently or otherwise, with respect to any Indebtedness described in §8.1(f) or any Indebtedness described in §8.1(g) that is Secured Indebtedness, (ii) a Guarantor, if any, shall only provide a guaranty of other landownersUnsecured Indebtedness of the Borrower permitted pursuant to §8.1(g), government and (iii) none of the Indebtedness described in §8.1(f) or quasi§8.1(g) that is Secured Indebtedness shall have any of the Unencumbered Properties or any interest therein or equipment related thereto or any direct or indirect ownership interest in any Guarantor, if any, or Unencumbered Property Subsidiary as collateral, a borrowing base, asset pool or any similar form of credit support for such Indebtedness (provided that the foregoing shall not preclude the Borrower from incurring liability with respect to Non-government or entity or similar entity in the ordinary course of business Recourse Exclusions in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith; and
(viii) Other Indebtedness of the REIT Guarantor and the Borrower (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth described in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.18.1(f)).
Appears in 1 contract
Restrictions on Indebtedness. The Credit Parties None of the Borrowers will, nor will not permit any of its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders Lenders, the Agents and the Issuing Banks arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iii) current liabilities of the Credit Parties incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(iv) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(v) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(vib) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viic) Indebtedness incurred in connection with the acquisition after the Closing Date of any Property, other than Intellectual Property (and in any event not more than ninety (90) days from the date of such acquisition), by such Borrower or such Subsidiary as contemplated by §9.2(x);
(d) obligations under or guaranties of Capitalized Leases;
(e) Indebtedness in respect of Hedging Agreements entered into for hedging purposes only and not for speculation; provided that nothing in this §9.1(e) shall be deemed to prohibit equity hedging arrangements that constitute Restricted Payments permitted pursuant to §9.4;
(f) Indebtedness existing on the Effective Date and listed and described on Schedule 9.1 hereto including any extensions or refinancings thereof on substantially similar terms as the Indebtedness being refinanced and provided there is no increase in the amount thereof;
(g) unsecured Indebtedness of any of BGI’s Subsidiaries to, or in respect of Obligations of, BGI or another Subsidiary of BGI consisting of intercompany loans and, if no Default or Event of Default shall have occurred and be continuing at the time such Indebtedness is incurred, any other Investments;
(h) unsecured Indebtedness of BGI to, or in respect of obligations of, a Subsidiary of BGI consisting of intercompany loans and, if no Default or Event of Default shall have occurred and be continuing at the time such Indebtedness is incurred, any other Investments;
(i) Indebtedness in an aggregate principal amount not to exceed $5,000,000 at any time extended by insurance or financing companies (or their agents or brokers) solely for the purpose of financing insurance premiums owing to such parties;
(j) Indebtedness which may be deemed to exist pursuant to any other landownersperformance, government or quasi-government or entity surety, statutory, appeal or similar entity obligations incurred in the ordinary course of business business;
(k) Indebtedness of BGI and Borders pursuant to the Second Lien Loan Facility, in connection with an aggregate principal amount not to exceed $90,000,000 at any time (excluding any interest that has been capitalized and added to such principal amount), including any extensions or refinancings thereof on substantially similar terms as the construction or development of any Real EstateIndebtedness being refinanced (and as otherwise permitted hereunder, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements pursuant to construct or pay for on-site or off-site improvements and similar agreements incurred §9.16) as long as there is no increase in the ordinary course of business amount thereof (other than any interest that has been capitalized and added to such amount); provided that such Indebtedness is, at all times and in connection with all respects, subject to the development of Real Estate or construction of infrastructure in connection therewithIntercreditor Agreement; and
(viiil) Other other Indebtedness of BGI in an aggregate principal amount not to exceed $160,000,000; provided that (i) at the REIT Guarantor time of incurrence of such Indebtedness, no Default or Event of Default has occurred and is continuing or would result therefrom, (ii) to the extent such Indebtedness is secured, the Administrative Agent shall have a first priority (or, in the case of the Second Lien Priority Collateral, second priority, subject only to the Second Lien Agent’s and Second Lien Secured Parties’ first priority security interest in the Second Lien Priority Collateral) security interest on the assets securing such Indebtedness and (iii) such Indebtedness is, at all times and in all respects, subject to an intercreditor agreement (A) in form and substance substantially similar to, and on terms no less favorable to the Lenders than as set forth in, the Intercreditor Agreement, and otherwise satisfactory to the Administrative Agent or (B) in form and substance satisfactory to the Administrative Agent and the Borrower (but not Required Lenders; provided, however, that any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to such Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing Paperchase shall not preclude Subsidiaries exceed an amount equal to the dollar equivalent of 9,000,000 pounds sterling in the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1)aggregate at any time.
Appears in 1 contract
Restrictions on Indebtedness. The Credit Parties Borrower will not, and will not permit any of its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other thanthan the following:
(ia) Indebtedness to the Lenders Banks and the Administrative Agent arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iii) current liabilities of the Credit Parties incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(iv) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(v) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(vib) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viic) Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity in the ordinary course of business in connection with the construction or development acquisition after the date hereof of any Real Estatereal or personal property by the Borrower or such Subsidiary or under any Capitalized Lease, includingprovided that the aggregate principal amount of such Indebtedness of the Borrower shall not exceed the aggregate amount of $5,000,000 at any one time;
(d) Indebtedness existing on the date hereof and listed and described on Schedule 10.1 hereto, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred described in the ordinary course Disclosure Documents, and any refinancing thereof, having covenants and maturities no less favorable to the Borrower than the Indebtedness being refinanced, and which does not increase the principal amount of business the Indebtedness being refinanced;
(e) Indebtedness of a Subsidiary of the Borrower existing on the date hereof to the Borrower;
(f) the Bangor Energy Guaranty;
(g) non-recourse Indebtedness of any Subsidiary participating in connection the planned joint venture with SEMPRA Energy Solutions;
(h) guarantees of the Borrower of scheduled payments of principal ad interest (not to exceed $4,200,000 in the aggregate in any fiscal year of the Borrower) in respect of Indebtedness of PERC, but only on the scheduled dates, and at the rates, as originally in effect (it being understood that the making of such guarantee shall be subject to prior review by the Administrative Agent of the documentation in respect thereof for the purpose of establishing compliance with the development requirements of Real Estate or construction this paragraph);
(i) guarantees of infrastructure the Borrower of the indebtedness of others, as set forth in connection therewithExhibit G, but only to the extent and upon the terms indicated;
(j) Indebtedness with respect to the Chase L/C until replacement by a Letter of Credit hereunder; and
(viiik) Other any unsecured Indebtedness not otherwise permitted by this Section 10.1 in an aggregate principal amount not to exceed at any one time the sum of (i) $5,000,000 plus (ii) an amount equal to 50% of the REIT Guarantor and aggregate amount of any reductions in the Borrower (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related Commitments made pursuant to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1)Section 2.3.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Bangor Hydro Electric Co)
Restrictions on Indebtedness. The Credit Parties Borrowers will not create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iiib) current liabilities of the Credit Parties Borrowers incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(vd) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(vie) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viif) Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity in of the ordinary course of business Parent Borrower in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements completion and similar agreements incurred guaranties in an aggregate amount at any one time not in excess of the ordinary course greater of business in connection with (i) $175,000,000 or (ii) fifteen percent (15%) of the development of Real Estate or construction of infrastructure in connection therewith; andGross Asset Value;
(viiig) Other Indebtedness of the Parent Borrower, the REIT Guarantor and the Borrower (but not or any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by of their Subsidiaries (other than any Subsidiary Guarantor) Borrower), provided that none of such Persons shall incur any of the REIT GuarantorIndebtedness described in this §8.1(g) unless it shall have provided to the Agent prior written notice of the proposed incurrence of such Indebtedness, provided a statement that the REIT Guarantor borrowing will not cause a Default or Event of Default and a Compliance Certificate demonstrating that the Borrower remain Borrowers will be in compliance with its covenants referred to therein after giving effect to the covenants set forth in §§9.1 through 9.5 after incurring incurrence of such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1).; and
Appears in 1 contract
Restrictions on Indebtedness. The Credit Parties Borrower will not createnot, nor will it permit any Subsidiary of Borrower to, issue, incur, assume, guarantee or be or remain liablecreate, become liable for, contingently or otherwise, or have outstanding any Indebtedness; provided, however, that the foregoing provisions shall not restrict nor operate to prevent the following Indebtedness, so long as the incurrence and maintenance of such Indebtedness would not cause the Borrower to be in violation of Section 7.17 hereof if compliance with respect to any Indebtedness other thansuch covenant were measured on the date of the incurrence of such Indebtedness:
(ia) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderObligations;
(iib) Unsecured Non-Recourse Indebtedness provided that of any Project Finance Subsidiary;
(c) so long as the Credit Parties remain Borrower would be in compliance with Section 7.17 hereof (calculated as of the covenants date of, and after giving affect to, the incurrence of such Indebtedness), secured Indebtedness (excluding Indebtedness of the type described in (e), (f), and (g) below but including the pledge of stock or similar equity interest of any Project Finance Subsidiary or any Subsidiary which is a special purpose entity whose sole purpose is to own the stock or similar equity interest of a Project Finance Subsidiary) (A) set forth in §9 after incurring such Indebtedness;
on Schedule 7.15(b) hereto, and (iiiB) current liabilities of the Credit Parties incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but not incurred through (i) the borrowing of moneyBHP, or (ii) evidencing the obtaining deferred purchase price of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(iv) Indebtedness in respect of taxes, assessments, governmental charges newly acquired property or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(v) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(vi) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(vii) Indebtedness incurred to any other landowners, government finance the acquisition of personal property of the Borrower or quasi-government or entity or similar entity a Subsidiary of the Borrower used in the ordinary course of business of the Borrower or Subsidiary, (iii) constituting Capitalized Lease Obligations or with respect to synthetic (or similar type) lease arrangements, or (iv) incurred in connection with the construction performance of tenders, statutory obligations, bids, leases or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay other similar obligations (other than for on-site or off-site improvements and similar agreements incurred borrowed money) entered into in the ordinary course of business or to secure obligations on performance bonds; provided, that the aggregate amount of Indebtedness permitted by this clause (B) at any time outstanding shall not exceed 5% of Consolidated Assets as reflected on the most recent balance sheet delivered by the Borrower pursuant to Section 7.6, provided that Borrower shall promptly provide the Administrative Agent with a copy of any documentation evidencing such Indebtedness in connection with excess of $25,000,000 and any modification to such Indebtedness, and (C) after the development consummation of Real Estate or construction the CLF&P Acquisition, of infrastructure in connection therewith; andCLF&P outstanding under the CLF&P Indenture on the date of such consummation which is assumed as part of such acquisition;
(viiid) Other so long as the Borrower would be in compliance with Section 7.17 hereof (calculated as of the date of, and after giving affect to, the incurrence of such Indebtedness), other Indebtedness (excluding Indebtedness of the REIT Guarantor and the Borrower type described in (but not any other Credit Partye), including (f), and (g) below) which is unsecured and either junior in connection right of payment to the Obligations or pari passu to the Obligations or is equally and ratably secured with customary recourse carvethe Obligations, provided that Borrower shall promptly provide the Administrative Agent with a copy of any documentation evidencing such Indebtedness in excess of $25,000,000 and any modification to such Indebtedness;
(e) intercompany loans (i) from (x) Subsidiary to Borrower so long as such loans are subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent, and (y) Borrower to a Subsidiary of Borrower, (ii) among Wholly-outs Owned Subsidiaries, and environmental indemnifications related (iii) from a Subsidiary of Borrower to a Marketing Subsidiary, so long as the aggregate amount of such loans from time to time owing by the Marketing Subsidiaries does not exceed the difference between (I) $10,000,000, less (II) the sum of (A) the aggregate amount of Guaranties outstanding pursuant to Section 7.15(f), and (B) the aggregate amount of other Investments then made in the Marketing Subsidiaries pursuant to Section 7.14(o)(ii) (it being understood that to the extent such limit is exceeded solely as a result of an increase in the value of any such Investment attributable to the undistributed net earnings of the Marketing Subsidiaries, it shall not be deemed a violation of this Section 7.15(e));
(f) Indebtedness incurred by consisting of Guaranties of the Indebtedness of the Marketing Subsidiaries (including Long-Term Guaranties), provided that such Indebtedness shall only be permitted to the extent the aggregate amount of such Indebtedness, when added to the sum of (i) the aggregate amount of all intercompany loans made to the Marketing Subsidiaries pursuant to Section 7.15(e), plus (ii) the aggregate amount of all other than Investments made in Marketing Subsidiaries pursuant to Section 7.14(o)(ii), plus (iii) the aggregate amount of L/C Obligations outstanding attributable to Marketing Subsidiary Letters of Credit, does not exceed $100,000,000 (it being understood that to the extent such limit is exceeded solely as a result of an increase in the value of any Subsidiary Guarantor) such Investment attributable to the undistributed net earnings of the REIT GuarantorMarketing Subsidiaries, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing it shall not preclude Subsidiaries be deemed a violation of this Section 7.15(f)) provided, further that Borrower shall promptly provide the Administrative Agent with a copy of any such Guarantee and any modification to such Guarantee;
(g) Indebtedness of the REIT Guarantor (other than Borrower or a Marketing Subsidiaries under Marketing Subsidiary Guarantor) from incurring Excluded Credit Facilities in an aggregate amount not to exceed the Marketing Subsidiary Indebtedness which would be prohibited by the terms of this §8.1).Limit;
Appears in 1 contract
Restrictions on Indebtedness. The None of the Credit Parties nor any of its Subsidiaries will not create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge Provider;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iii) current liabilities of the Credit Parties consisting of the Obligations under the Loan Documents;
(b) Indebtedness of any Credit Party outstanding as of the Closing Date and reflected on Schedule 7.02 hereto and any refinancing thereof or amendments or modifications thereof that do not have the effect of increasing the principal amount thereof, decreasing the weighted average life thereof, accelerating the maturity date thereof or increasing the cash pay interest thereof and that are otherwise on terms and conditions no less favorable as a whole to such Credit Party, the Administrative Agent or any other Secured Party, as determined by the Administrative Agent than the terms of the Indebtedness being refinanced, amended or modified;
(c) Indebtedness in respect of Swap Contracts entered into not for speculative purposes;
(d) Indebtedness consisting of intercompany loans and advances permitted by Section 7.01(c); provided, however, no such intercompany loan and/or advance shall be made to GAEBB, bb AF, and/or BMI;
(e) Guarantees by any Credit Party of Indebtedness of any other Credit Party permitted by this Section 7.02;
(f) Indebtedness consisting of contingent liabilities under surety bonds and similar instruments incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in business of the aggregate at any time, but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and servicesCredit Parties;
(ivg) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(v) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(vi) endorsements for collection, deposit or negotiation and warranties of products or netting services, in each case incurred in the ordinary course of business;
(vii) Indebtedness incurred to any other landowners, government or quasi-government or entity or automatic clearing house arrangements and similar entity arrangement in the ordinary course of business in each case in connection with deposit and securities account of the construction Credit Parties;
(h) to the extent constituting Indebtedness, obligations in respect of agreements for the deferred payment of premiums or development to finance the deferred payment of premiums owing by any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred Credit Party under any insurance policies entered into in the ordinary course of business that are either (i) unsecured or (ii) secured by a Lien permitted under Section 7.03(a)(x);
(i) Indebtedness incurred to finance the acquisition, lease construction or improvement of any fixed or capital assets (whether or not constituting purchase money Indebtedness) and including capital lease obligations; provided that the aggregate principal amount of Indebtedness permitted by this clause (i) shall not exceed $2,000,000 at any time outstanding;
(j) unsecured Indebtedness of any Person that becomes a Subsidiary after the date hereof; 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 the development of Real Estate or construction of infrastructure in connection therewith; and
(viii) Other Indebtedness of the REIT Guarantor and the Borrower (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or Person becoming a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1).and
Appears in 1 contract
Sources: Credit Agreement
Restrictions on Indebtedness. The Credit Parties Borrower and the Guarantors will not, and will not permit their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(iib) subject to the provisions of §9, Unsecured Indebtedness provided that Debt in respect of any Derivative Contracts entered into by Borrower, the Credit Parties remain Guarantors or their respective Subsidiaries in compliance with the covenants set forth in §9 after incurring such Indebtednessordinary course of business for matters related to the operation of Data Center Properties (e.g., foreign currency ▇▇▇▇▇▇ or diesel fuel swaps to hedge commodity exposure);
(iiic) current liabilities of the Credit Parties Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivd) Indebtedness in respect of (i) taxes, assessments, governmental charges or levies and (ii) claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.87.8 or §8.20, as applicable;
(ve) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default[Intentionally Omitted;]
(vif) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viig) subject to the provisions of §9, Secured Debt, provided that (A) the aggregate amount of Secured Debt shall not exceed forty percent (40%) of Gross Asset Value; provided, however, that for one or more periods of up to four (4) consecutive fiscal quarters immediately following each Material Acquisition of which Borrower has given Agent written notice (with such four (4) consecutive fiscal quarter period to include the quarter in which such Material Acquisition is consummated), such ratio of Secured Debt to Gross Asset Value (expressed as a percentage) may exceed forty percent (40%) but shall not exceed forty-five percent (45%) during such period; and (B) in addition to the limitation set forth in the immediately preceding clause (A), (1) the aggregate amount of Secured Debt that is Recourse Indebtedness incurred (excluding the Obligations and the Hedge Obligations to the extent ever secured hereunder) shall not exceed fifteen percent (15%) of Gross Asset Value, and (2) the aggregate amount of Capitalized Lease Obligations of Parent Company and its Subsidiaries with respect to any other landowners, government or quasi-government or entity or similar entity in of the ordinary course of business in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewithUnencumbered Asset Pool Properties shall not exceed $45,000,000.00;
(h) [Intentionally Omitted;]
(i) [Intentionally Omitted;]
(j) [Intentionally Omitted]; and
(viiik) Other Indebtedness subject to the provisions of §9, Unsecured Debt of (i) the REIT or Subsidiaries of the REIT Guarantor that are not the Borrower, the Initial Subsidiary Guarantors or Additional Subsidiary Guarantors (or any direct or indirect owners of such Subsidiaries), and (ii) the Borrower, Initial Subsidiary Guarantors and the Borrower Additional Subsidiary Guarantors, provided that such Unsecured Debt only has the Unencumbered Asset Pool Properties as a borrowing base or the documents evidencing same contain a covenant substantially similar to Section 4.12 of the Indenture. Notwithstanding anything in this Agreement to the contrary, (but not i) none of the Indebtedness described in §8.1(g) above shall have any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications of the Unencumbered Asset Pool Properties or any interest therein or equipment related to Indebtedness incurred by Subsidiaries thereto (other than Capitalized Lease Obligations not otherwise prohibited by §8.1(g) above) or any direct or indirect ownership interest in a Subsidiary GuarantorGuarantor that either (A) owns, directly or indirectly, an Unencumbered Asset Pool Property, or (B) directly or indirectly provides services to an Unencumbered Asset Pool Property as collateral, a borrowing base, asset pool or any similar form of credit support for such Indebtedness (provided that the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor Parent Company (other than Borrower or a Subsidiary GuarantorGuarantor that either (A) from incurring owns, directly or indirectly, an Unencumbered Asset Pool Property, or (B) that directly or indirectly provides services to an Unencumbered Asset Pool Property (or any direct or indirect owners of such Subsidiaries)) to incur Non-Recourse Indebtedness which would be prohibited by subject to the terms of this §8.18.1 or recourse to the general credit of the Parent Company or the Borrower), and (ii) neither REIT nor any Subsidiary Guarantor that (A) either owns, directly or indirectly, an Unencumbered Asset Pool Property, or (B) that directly or indirectly provides services to an Unencumbered Asset Pool Property, shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (including, without limitation, pursuant to any conditional or limited guaranty or indemnity agreement creating liability with respect to usual and customary exclusions from the non-recourse limitations governing the Non-Recourse Indebtedness of any Person, or otherwise) other than Indebtedness described in §§8.1(a)-(d), (f) and (k) above and Capitalized Lease Obligations not otherwise prohibited by §8.1(g) above.
Appears in 1 contract
Restrictions on Indebtedness. The Credit Parties Borrower will not, and will not permit any of its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders Lender arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iii) current liabilities of the Credit Parties incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(iv) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(v) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(vib) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viic) Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity in the ordinary course of business in connection with the construction or development acquisition after the date hereof of any Real Estatereal or personal property by the Borrower or any Subsidiary of the Borrower or under any Capitalized Lease, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements PROVIDED that the aggregate principal amount of such Indebtedness of the Borrower and its Subsidiaries shall not exceed the aggregate amount of $1,000,000 at any one time;
(d) Indebtedness existing on the date of this Loan Agreement (including all commitments to construct make loans or pay for on-site or off-site improvements credit extensions available to the Borrower by any Person but which remain undrawn by the Borrower on the date hereof) and similar agreements incurred in any refinancings thereof (so long as the ordinary course aggregate amount of business such Indebtedness is not increased) and listed and described on SCHEDULE 7.1 hereto;
(e) Existing Indebtedness of Bridgestone assumed by the Borrower in connection with the development Bridgestone Acquisition pursuant to the Bridgestone Acquisition Documents;
(f) Indebtedness of Real Estate or construction a Subsidiary of infrastructure in connection therewiththe Borrower to the Borrower; and
(viiig) Other Indebtedness of the REIT Guarantor and the Borrower (but not any other Credit Party), including deposits or pledges made in connection with customary recourse carve-outs and environmental indemnifications related with, or to Indebtedness incurred by Subsidiaries (secure payment of, workmen's compensation, unemployment insurance, old age pensions or other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1)social security obligations.
Appears in 1 contract
Sources: Loan Agreement (Applied Opsec Corp)
Restrictions on Indebtedness. The Credit Parties will not create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(i) Indebtedness to the Lenders arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge Provider;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iii) current liabilities of the Credit Parties incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(iviii) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(viv) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(viv) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viivi) Indebtedness incurred to any other landowners, government or quasi-government or entity or similar entity in the ordinary course of business in connection with the construction or development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith; and
(viiivii) Other Indebtedness of the REIT Guarantor and the Borrower (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 9.4 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring to incur Indebtedness which would be prohibited by the terms of this §8.1).
Appears in 1 contract
Restrictions on Indebtedness. The Credit Parties Neither the Parent nor the Borrower ---------------------------- will, nor will not they permit any of their Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders Banks and the Agent arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iiib) current liabilities of the Credit Parties Parent, the Borrower or any of their Subsidiaries incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but business not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, worker's compensation, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8(S)11.8;
(vd) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the period Borrower or any Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(vie) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viif) Indebtedness incurred to of the Parent, the Borrower or any other landownersof their Subsidiaries in respect of intercompany loans, government or quasi-government or entity advances, obligations or similar entity transfers among the Parent, the Borrower or such Subsidiaries, provided that such Person has executed and delivered to the Agent, for the -------- benefit of the Banks and the Agent, a guaranty in substantially the ordinary course form of business Exhibit E attached hereto (if such Person is not a Borrower), a security --------- agreement in substantially the form of Exhibit F attached hereto, and any --------- other agreements, documents or instruments necessary to grant to the Agent a first priority perfected security interest in such Person's assets, as applicable;
(g) Indebtedness of the Borrower or any Subsidiary in respect of Capitalized Leases and purchase money Indebtedness incurred in connection with the construction or development acquisition after the date hereof of any Real Estatereal or personal property by the Borrower or any Subsidiary; provided that (i) the amount of such -------- Indebtedness does not exceed the lesser of the fair market value or the purchase price of the property so acquired, includingand (ii) any lien securing such Indebtedness covers only the property so acquired, without limitationand provided, subdivision improvement agreementsfurther --------- ------- that the sum of (A) the present value of the aggregate amount of all future principal payments owing under (i) Capitalized Leases existing on the date hereof and (ii) additional Capitalized Leases entered into pursuant to this subsection (g) after the date hereof, development agreementsand (B) the aggregate principal amount of such purchase money Indebtedness, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith; andshall not at any time exceed $7,000,000;
(viiih) Other Indebtedness in respect of the REIT Guarantor and the Borrower interest rate protection arrangements required to be maintained by (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms of this §8.1).S)10.14;
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Chart House Enterprises Inc)
Restrictions on Indebtedness. The Credit Parties Borrowers will not, and will not ---------------------------- permit any of their Restricted Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ia) Indebtedness to the Lenders Banks, the Issuing Bank and the Agents arising under any of the Loan Documents and Hedge Obligations to a Lender Hedge ProviderDocuments;
(ii) Unsecured Indebtedness provided that the Credit Parties remain in compliance with the covenants set forth in §9 after incurring such Indebtedness;
(iiib) current liabilities of the Credit Parties Borrowers or their Restricted Subsidiaries incurred in the ordinary course of business, including but not limited to short term unsecured financing arrangements not to exceed $500,000 in the aggregate at any time, but business not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(ivc) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8(S)9.8;
(vd) Indebtedness in respect of judgments only to or awards that have been in force for less than the extent, applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which any Borrower or any of their Restricted Subsidiaries shall at the period time in good faith be prosecuting an appeal or proceedings for review and for an amount not resulting in an Event respect of Defaultwhich a stay of execution shall have been obtained pending such appeal or review;
(vie) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(viif) Indebtedness in respect of the CSX Remaining Debt, provided that the aggregate principal amount of such Indebtedness shall not exceed $8,922,105;
(g) Indebtedness of any of the Borrowers or any of their Restricted Subsidiaries to any of the Borrowers or any of their other Restricted Subsidiaries consisting of rights of reimbursement, contribution, subrogation and the like in connection with the joint and several obligations of the Borrowers and their Restricted Subsidiaries under the Loan Documents;
(h) Indebtedness incurred (other than under this Credit Agreement) or assumed in connection with the acquisition after the date hereof of any real or personal property by the Borrowers or their Restricted Subsidiaries (including Indebtedness in respect of Capitalized Leases), provided that -------- the aggregate principal amount of such Indebtedness of (i) the US Borrower and its Restricted Subsidiaries shall not exceed the aggregate amount of $12,000,000 at any one time, (ii) the Australian Borrower and the Australian Guarantors shall not exceed the aggregate Dollar Equivalent amount of $4,000,000 at any time, (iii) GRO and its Restricted Subsidiaries shall not exceed the aggregate Dollar Equivalent amount of $2,500,000 at any one time, and (iv) the Mexican Borrower and the Mexican Guarantors shall not exceed the aggregate Dollar Equivalent amount of $100,000 at any one time;
(i) Indebtedness existing on the date hereof and listed and described on Schedule 10.1 hereto; -------------
(j) Indebtedness of (i) the US Borrower to any of the US Guarantors or any of the US Guarantors to the US Borrower or any of the other landownersUS Guarantors, government (ii) the Australian Borrower to any of the Australian Guarantors or quasi-government any of the Australian Guarantors to the Australian Borrower or entity any of the other Australian Guarantors, (iii) the Canadian Borrower to any of the Canadian Guarantors or any of the Canadian Guarantors to the Canadian Borrower or any of the other Canadian Guarantors or (iv) the Mexican Borrower to any of the Mexican Guarantors or any of the Mexican Guarantors to the Mexican Borrower or any other Mexican Guarantor;
(k) Indebtedness of the Borrowers with respect to Rate Hedging Agreements provided that such Rate Hedging Agreements are in form and -------- substance acceptable to the Administrative Agent;
(l) Indebtedness in respect of performance, surety, statutory, insurance, appeal or similar entity bonds obtained in the ordinary course of business business;
(m) Indebtedness of the Borrowers and their Restricted Subsidiaries in respect of operating leases;
(n) Indebtedness under the Willamette Valley Note not to exceed $400,000 in principal amount outstanding at any time;
(o) Indebtedness the Borrowers or any of their Restricted Subsidiaries in respect of guaranties of obligations in connection with Permitted Acquisitions and other Investments permitted by (S)10.3(i) and (k) and for the construction or development operation of any Real Estateof their Restricted Subsidiaries (in each case, includingto the extent the underlying Indebtedness with respect thereto is otherwise permitted under this (S)10.1), without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements not to construct or pay exceed $10,000,000 in aggregate for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewithall such permitted at any time; and
(viiip) Other other Indebtedness of not included in the REIT Guarantor and the Borrower (but not any other Credit Party), including in connection with customary recourse carve-outs and environmental indemnifications related to Indebtedness incurred by Subsidiaries (other than any Subsidiary Guarantor) of the REIT Guarantor, provided the REIT Guarantor and the Borrower remain in compliance with the covenants set forth in §§9.1 through 9.5 after incurring such Indebtedness. The foregoing shall not preclude Subsidiaries of the REIT Guarantor (other than Borrower or a Subsidiary Guarantor) from incurring Indebtedness which would be prohibited by the terms provisions of this §8.1)(S)10.1 not to exceed $1,000,000 in the aggregate at any time outstanding.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Genesee & Wyoming Inc)