Restrictions on Indebtedness. 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: (a) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan Documents; (b) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (c) 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 Subsidiaries 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, 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 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 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; and (q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness 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. None of the Borrowers willThe 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:
(a) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan Documents;
(b) current liabilities of the Borrower or its Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(c) 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;
(d) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in a Default or Event of Default;
(e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(cf) subject to the provisions of §9, Non-Recourse 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;
Borrower and its Subsidiaries (e) Indebtedness other than the Guarantors, the Unencumbered Property Subsidiaries or any other Subsidiary 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 Borrower or a Controlled JV Entity owning an interest 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 Documentsa Guarantor or an Unencumbered Property Subsidiary); provided that the Borrowers are Borrower may provide a guaranty or indemnity with respect to Non-Recourse Exclusions in current compliance connection with such Non-Recourse Indebtedness; 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) 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 Unsecured 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(g8.1(g), provided and (iii) none of the Indebtedness described in §8.1(f) or §8.1(g) that any such is Secured Indebtedness was not created at the time of or in contemplation or in anticipation of such acquisition;
(k) Indebtedness of shall have any of the Borrowers 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 their Subsidiaries which are Guarantors incurred credit support for such Indebtedness (provided that the foregoing shall not preclude the Borrower from incurring liability with respect to Non-Recourse Exclusions 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 Subsidiaries 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, 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 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 described 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l8.1(f)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection.
Appears in 3 contracts
Sources: Credit Agreement (Mid-America Apartments, L.P.), Credit Agreement (Mid-America Apartments, L.P.), Credit Agreement (Mid-America Apartments, L.P.)
Restrictions on Indebtedness. None of the Borrowers will, and will The Borrower shall not permit any of its Subsidiaries to, directly or indirectly create, incur, issue, assume, guarantee permit, suffer to exist or otherwise be or remain liablebecome liable with respect to, contingently or otherwiseotherwise (collectively, with respect to “incur”), any Indebtedness other thanIndebtedness; provided, however, that the Borrower may incur any of the following items of Indebtedness:
(a) Indebtedness existing under the Initial Senior Bond Indentures in an amount not to exceed the Lenders and amount of Indebtedness outstanding under the Administrative Agent arising under any Initial Senior Bond Indentures as of the Loan Documentsdate of the Fifth Omnibus Amendment;
(b) endorsements for collectionPermitted Refinancing Indebtedness of the Borrower in exchange for, deposit or negotiation and warranties the net proceeds of products which are used to renew, refund, refinance, replace, defease or servicesdischarge any Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), in each case incurred in the ordinary course of business;
(b) or (c) Indebtedness in respect of any Derivative Contracts in this Section 2.5, provided that each of the ordinary course of business;following conditions shall have been satisfied:
(d1) Existing the Senior Debt, and refundings, replacements or refinancings thereof; provided that no such refunding or refinancing Facility Agent shall shorten the maturity or weighted average life to maturity or increase the principal amount of any have received a certificate from an Authorized Officer of the Existing Senior Debt;
(e) Indebtedness of BGI’s domestic Subsidiaries that are Guarantors not Borrower 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 effect 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 outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to Sale Leaseback Transactions referred to in §9.1(nclauses (f), 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 Subsidiaries 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, 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 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (eh), (fi), (j), (k), (l) or ), (m), and (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 any subsection of this Section 9.1 is permitted 2.5) (after giving effect to be incurred by BGI and/or any the incurrence and application of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect proceeds of such Indebtedness, Permitted Refinancing
(2) using an interest rate equal to the BGI Guaranty shall not increase weighted average interest rate of all such Senior Debt outstanding after giving effect to the amount incurrence of the Permitted Refinancing Indebtedness deemed incurred under such subsection.and the application of the proceeds therefrom);
Appears in 3 contracts
Sources: Senior Working Capital Revolving Credit and Letter of Credit Reimbursement Agreement (Cheniere Energy Partners, L.P.), Senior Working Capital Revolving Credit and Letter of Credit Reimbursement Agreement (Cheniere Energy, Inc.), Senior Working Capital Revolving Credit and Letter of Credit Reimbursement Agreement (Sabine Pass Liquefaction, LLC)
Restrictions on Indebtedness. None of the Borrowers willThe 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:
(a) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan Documents;
(b) 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 §8.8;
(c) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the Borrower or such Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review;
(d) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) 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 DateSubordinated 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 BGI’s foreign Subsidiaries not to exceed in any real or personal property by the Borrower or such Subsidiary or under any Capitalized Leases, provided that (i) the aggregate for all such foreign Subsidiaries $100,000,000, including 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 on at any one time and (ii) the Closing Date but excluding principal amount of such Indebtedness under the Loan Documents; provided that the Borrowers are in current compliance with and, after giving effect secured by or relating to the proposed incurrence lease of Indebtedness, will continue to be in compliance with all any particular property shall not exceed 100% of the covenants in §§9 and 10 hereof as if the transaction occurred on the first day purchase price of the period of measurementsuch property;
(g) Indebtedness of existing on 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;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 Borrowers 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 Subsidiary that is a Guarantor in respect of Subordinated Debtmanner 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 Borrowers owing Borrower and its Subsidiaries consisting of short-term trade credit extended to any the Borrower or such Subsidiary in the ordinary course of such Borrower Person’s business in connection with the acquisition of Containers and other equipment; provided that is a Guarantor which is expressly subordinated to such Indebtedness shall not be in existence for more than 180 days after the prior payment in full in cash occurrence of all Obligations on terms disclosed to and reasonably acceptable to the Administrative Agent prior to the incurrence thereoftransaction giving rise thereto;
(j) Indebtedness in respect 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 acquisitionInterest Rate Protection Agreements;
(k) Indebtedness of any a Subsidiary of the Borrowers or any Borrower to the Borrower consisting 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 outstandingInvestments permitted by §9.3(e);
(l) additional Indebtedness consisting of obligations (contingent or otherwise) of the Borrowers not exceeding $35,000,000 less Borrower or any Indebtedness incurred Subsidiary existing or arising under paragraph (g)any Swap Contract entered into with any Lender or the Administrative Agent, in aggregate principal amount at any one time outstanding;
(m) Indebtedness of Subsidiaries of the Borrowers which are Guarantors owing to any other Subsidiaries of the Borrowers which are Guarantors or to the Borrowers which results from an Investment permitted under §9.3(g) or provided that (i);
) such obligations are (nor were) Indebtedness of BGI and its domestic Subsidiaries which are Guarantors incurred in connection with Sale Leaseback Transactions, 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 supply chain financing entered into by such Person in the ordinary course of business which is nonrecourse 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 Borrowers defaulting party; and
(m) Indebtedness owing to Interpool 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 40,000,000 incurred in connection with any acquisition permitted the purchase by the Borrower of its common stock from Interpool under §9.5; provided the Redemption Agreement and representing the “cash” portion of such purchase price, provided, that no such Indebtedness shall remain outstanding following 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount earlier of (i) Indebtedness of fourteen (14) days after the Borrowers (under paragraphs (j) or (l)) secured by Liens plus Closing Date and (ii) Indebtedness the Drawdown Date of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsectionTerm 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. None of the Borrowers will, and The Borrower will not permit any of its Subsidiaries to, to create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness, or become or be responsible in any manner (whether by agreement to purchase any obligations, stock, assets, goods or services, or to supply or advance any funds, assets, goods or services or otherwise) with respect to any Indebtedness of any other Person (other than the Borrower or any of its Subsidiaries), other than:
(a) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan Documents;Borrower’s Subsidiaries listed in Schedule 8.1(a) and any extension, renewal or refinancing of such Indebtedness, provided that the terms and conditions of any such extensions, renewals or refinancings do not increase the relative priority of the original Indebtedness and provided, further, that such extended, renewed or refinanced Indebtedness does not in the aggregate exceed the Dollar amount of the original Indebtedness; and
(b) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) 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) Other 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 Borrower’s Subsidiaries (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;
(iGuarantor) 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 Subsidiaries 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, 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 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of all such Indebtedness under this §8.1(b), when added (iwithout duplication) to the aggregate outstanding amount of secured Indebtedness of the Borrowers Borrower and its Subsidiaries under subsections (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (f), (jk), (l) or and (o)m) of the definition of “Permitted Liens” and Indebtedness with respect to Permitted Receivables Transactions, shall not exceed fifteen percent (15%) % of Consolidated Total Tangible 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 at any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsectiontime.
Appears in 3 contracts
Sources: Revolving Credit Agreement (Waste Management Inc), Revolving Credit Agreement (Waste Management Inc), Revolving Credit Agreement (Waste Management Inc)
Restrictions on Indebtedness. None 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 Borrowers willBorrower) 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:
(a) Indebtedness to the Lenders and the Administrative Agent Banks arising under any of the Loan Documents, and Indebtedness and obligations in respect of the Interest Rate Contract(s) required pursuant to §7.18 and §7.20;
(b) current liabilities of the Borrower or its Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(c) 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;
(d) Indebtedness in respect of judgments or awards the existence of which does not create an Event of Default;
(e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(cf) 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 in respect of any Derivative Contracts in Borrower, the ordinary course of business;
(d) Existing Senior Debt, and refundings, replacements Trust 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;
Borrower’s Subsidiaries (eother than Subsidiary Guarantors) under environmental indemnities and guarantees with respect to customary exceptions to exculpatory language with respect to Non-recourse Indebtedness of BGIBorrower’s domestic Subsidiaries or Unconsolidated Affiliates permitted pursuant to §8.3(i) (it being agreed that are Guarantors any such indemnity or guaranty shall not cause such Non-recourse Indebtedness to exceed $10,000,000, including such be deemed to be Recourse Indebtedness outstanding on the Closing Date;
(f) Indebtedness of BGI’s foreign Subsidiaries not to exceed and provided that in the aggregate for all event any claim is made against Borrower, the Trust or any of their respective Subsidiaries with respect to such foreign Subsidiaries $100,000,000indemnities, including guarantees or exceptions, the amount so claimed shall be considered a recourse liability of 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 measurementPerson);
(g) Indebtedness in respect of the Borrowers or any Subsidiary that is reverse repurchase agreements having a Guarantor that constitutes a Synthetic Lease or Capitalized Lease or otherwise incurred term of not more than one hundred eighty (180) days with respect to finance the acquisition of fixed or capital assets (other than pursuant to Sale Leaseback Transactions referred to Investments described in §9.1(n8.3(d) or (e), 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) 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 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 Subsidiaries 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, 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 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (f), (j), (l) or (o)) shall not exceed fifteen percent (15%) of Consolidated Total Assets 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 Borrowers, determined as payment of the end such costs; and provided further that Indebtedness 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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or Borrower or any of its SubsidiariesSubsidiaries 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, and BGI guarantees the obligations Borrower or a Subsidiary of any Subsidiary in respect either of them on account of such Indebtednessguaranty or (ii) 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 BGI Guaranty shall 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 increase the amount of Indebtedness deemed incurred under such subsection.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. None of the Borrowers will, and will not permit any of its Subsidiaries to, createCreate, incur, assumesuffer or permit to exist, guarantee or be assume or guarantee, either directly or indirectly, or otherwise become or remain liable, contingently or otherwise, liable with respect to to, any Indebtedness other thanIndebtedness, except the following:
(a) Indebtedness to the Lenders and the Administrative Agent arising under any of this Agreement, the Term Loan DocumentsNotes, and the other Lender Agreements;
(b) endorsements for collection, deposit or negotiation the InterCompany Debt and warranties of products or services, in each case incurred in such other indebtedness by the ordinary course of businessBorrower to American Ski and its Subsidiaries provided that it is governed by the Subordination Agreement;
(c) Indebtedness in respect of any Derivative Contracts in the ordinary course of businessPurchase Money Indebtedness;
(d) Existing Senior Debtas to the Borrower Subsidiaries, Permitted Construction Loans, and refundingsindebtedness of a Subsidiary of Borrower associated with the exercise of Borrower's rights under the Purchase Option (collectively, replacements "Permitted Financial Facilities") Indebtedness shall not constitute a Permitted Financial Facility or refinancings thereof; provided that a Permitted Construction Loan unless: (i) the terms and conditions and documents evidencing and securing the Indebtedness, and any proposed modifications thereto, have been approved in advance by the Agent and (ii) no such refunding document or refinancing shall shorten instrument either prohibits or causes the maturity or weighted average life to maturity or increase the principal amount of any acceleration of the Existing Senior Debtrespective Indebtedness upon the pledge of the equity interests of the Borrower Subsidiary to the Agent or upon the foreclosure of such pledge by the Agent. Agent hereby approves those documents and instruments delivered to the Agent on or before the Closing Date (but not otherwise) executed in connection with the 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 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) Indebtedness 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 BGI’s domestic Subsidiaries that are Guarantors not to exceed $10,000,000, including such Indebtedness outstanding on a portion of the Closing DateKey Bank Facility;
(f) guaranties by a Borrower Subsidiary for the Indebtedness permitted hereunder 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 measurementanother Borrower Subsidiary;
(g) Indebtedness which refinances any previously permitted Indebtedness hereunder provided the terms and conditions of such Indebtedness are no less stringent that the Borrowers or any Subsidiary that is a Guarantor that constitutes a Synthetic Lease or Capitalized Lease or previous permitted Indebtedness and the refinance Indebtedness otherwise incurred to finance meets 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 outstandingrequires established herein for permitted Indebtedness;
(h) Indebtedness of the Borrowers or any Subsidiary Senior Note Guaranty provided that is a Guarantor in respect of Subordinated Debtit remains subordinate to the Lender Obligations;
(i) Indebtedness of such other subordinated indebtedness as is approved by 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;Agent; and
(j) Indebtedness of a Person outstanding at indebtedness under 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 Subsidiaries 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, 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 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsectionPurchase Option.
Appears in 2 contracts
Sources: Credit Agreement (Asc East Inc), Credit Agreement (American Skiing Co /Me)
Restrictions on Indebtedness. None of the Borrowers willThe Borrower will not, and will not permit any of its Restricted Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders Lenders, the Issuing Bank and the Administrative Agent arising under any of the Loan Documents;
(b) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) Indebtedness incurred in respect connection with the acquisition or lease after the date hereof of any Derivative Contracts in real or personal property by the ordinary course Borrower or such Restricted Subsidiary (including Indebtedness evidenced by Capitalized Lease or a Synthetic Lease, provided that the aggregate principal amount of businesssuch Indebtedness of the Borrower and its Restricted Subsidiaries shall not exceed the aggregate amount of $80,000,000 at any one time;
(d) Existing Senior DebtIndebtedness existing on the date hereof and listed and described on Schedule 9.1 hereto and any Refinancing or renewal of such Indebtedness; provided, and refundings, replacements that any such Refinancing or refinancings thereof; provided that no such refunding or refinancing shall shorten the maturity or weighted average life to maturity or renewal does not (i) increase the principal aggregate amount of such Indebtedness (except by the amount of any premium or fee paid or payable in connection with such extension, renewal or replacement), (ii) 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 or the Existing Senior DebtIntercreditor Agreement or (iv) add to the collateral or other credit support securing such Indebtedness;
(e) Indebtedness of BGI’s domestic the Borrower to any of its Restricted Subsidiaries or of any Restricted Subsidiary to the Borrower or any other Subsidiary of the Borrower; provided, that are Guarantors Indebtedness owing to any Subsidiary of the Borrower that is not a Guarantor shall be subject to exceed $10,000,000, including such Indebtedness outstanding on the Closing Date§9.3;
(f) Indebtedness of BGI’s foreign Subsidiaries the Borrower or any Restricted Subsidiary incurred to Refinance the Indebtedness incurred in connection with a Permitted Securitization and otherwise solely for the purpose of financing assets of the Borrower and/or its Subsidiaries, provided, that any such Refinancing of a Permitted Securitization (i) does not to exceed increase the aggregate amount of such Indebtedness or, in the aggregate for all case of any revolving Indebtedness, increase the maximum permitted amount of such foreign Subsidiaries $100,000,000Indebtedness, including (ii) does not result in Indebtedness having a Weighted Average Life to Maturity which occurs on or prior to the Maturity Date, or (iii) change, alter or modify the terms of such Indebtedness outstanding on in any manner which violates either §9.11 or 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 measurementIntercreditor Agreement;
(g) Indebtedness of the Borrowers or any Subsidiary that is Borrower incurred under a Guarantor that constitutes a Synthetic Lease or Capitalized Lease or otherwise incurred to finance Recourse Guaranty issued in connection with the acquisition of fixed or capital assets transactions described in clause (other than pursuant to Sale Leaseback Transactions referred to in §9.1(nb), whether pursuant to a loan(c) or (d) of the definition of the term “Permitted Securitization”, financing lease or otherwise) in an aggregate principal amount not to exceed (i) Eighty Million Dollars ($30,000,000 at any time outstanding80,000,000), (ii) Four Hundred Million Dollars ($400,000,000) and (iii) Twenty Million Dollars ($20,000,000), respectively;
(h) Indebtedness of under interest rate protection agreements and hedging agreements which are non-speculative in nature and are entered into to protect the Borrowers Borrower and/or its Subsidiaries against fluctuations in interest rates, currency exchange rates or any Subsidiary that is a Guarantor in respect of Subordinated Debtcommodity prices;
(i) Indebtedness of the Borrowers owing to any Person that becomes a Restricted Subsidiary of the Borrower after the date hereof, provided, that such Indebtedness (1) exists at the time such Person becomes a Restricted Subsidiary of the Borrower, (2) is not created in contemplation of or in connection with such Person becoming a Subsidiary of the Borrower that is a Guarantor which is expressly subordinated to and (3) otherwise complies with the prior payment in full in cash provisions of all Obligations on terms disclosed to and reasonably acceptable to the Administrative Agent prior to the incurrence thereof;this § 9.1, including § 9.1(j); and
(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 Subsidiaries 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 Borrower and its domestic Restricted Subsidiaries which are Guarantors incurred in connection with Sale Leaseback Transactions, in an aggregate principal amount not to exceed $25,000,000 80,000,000 at any time outstanding;
(o) Indebtedness outstanding and which would not result in a violation of BGI and its domestic Subsidiaries which are Guarantors incurred in connection with accounts receivable securitizations on customary terms § 10.1 or 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection§ 10.2.
Appears in 2 contracts
Sources: Revolving Credit Agreement (SeaCube Container Leasing Ltd.), Revolving Credit Agreement (SeaCube Container Leasing Ltd.)
Restrictions on Indebtedness. None of the Borrowers willBorrower will not, and nor will not it permit any Subsidiary of its Subsidiaries Borrower to, createissue, 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:
(a) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan DocumentsObligations;
(b) endorsements for collectionNon-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, deposit 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 negotiation similar equity interest of any Project Finance Subsidiary or any Subsidiary which is an entity whose sole purpose and warranties extent of products business activities is to own the stock or servicessimilar equity interest of a Project Finance Subsidiary) (A) set forth on Schedule 7.15(b) hereto (and, in each case with respect to 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) of BHP, (ii) evidencing the deferred purchase price of newly acquired property or incurred to finance the acquisition of personal property of the Borrower or a Subsidiary of the Borrower used in the ordinary course of business;
business of the Borrower or Subsidiary, (ciii) Indebtedness constituting Capitalized Lease Obligations or with respect to synthetic (or similar type) lease arrangements, or (iv) incurred in respect connection with the performance of any Derivative Contracts tenders, statutory obligations, bids, leases or other similar obligations (other than for borrowed money) entered into in the ordinary course of businessbusiness 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 excess of $25,000,000 and any modification to such Indebtedness, and (C) of CLF&P outstanding under the CLF&P Indenture;
(d) Existing Senior Debtso long as the Borrower would be in compliance with Section 7.17 hereof (calculated as of the date of, and refundingsafter giving affect to, replacements 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 refinancings thereof; pari passu to the Obligations or is equally and ratably secured with the Obligations, provided that no such refunding or refinancing Borrower shall shorten promptly provide the maturity or weighted average life to maturity or increase the principal amount Administrative Agent with a copy of any documentation evidencing such Indebtedness in excess of the Existing Senior Debt$25,000,000 and any modification to such Indebtedness;
(e) Indebtedness 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 BGI’s domestic 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 are Guarantors 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 to exceed $10,000,000, including such Indebtedness outstanding on the Closing Datebe deemed a violation of this Section 7.15(e));
(f) Indebtedness consisting of BGI’s foreign Guaranties of the Indebtedness of the Marketing Subsidiaries not (including Long-Term Guaranties), provided that such Indebtedness shall only be permitted to exceed 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 Letter of Credit” (as such terms are defined in the aggregate for all such foreign Subsidiaries $100,000,000, including such Indebtedness outstanding on Existing Credit Agreement)does not exceed the Closing Date but excluding Indebtedness under the Loan Documents; provided Marketing Subsidiary Sublimit (it being understood that the Borrowers are in current compliance with and, after giving effect to the proposed incurrence extent such limit is exceeded solely as a result of Indebtedness, will continue an increase in the value of any such Investment attributable to be in compliance with all the undistributed net earnings of the covenants in §§9 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 10 hereof as if the transaction occurred on the first day of the period of measurementany modification to such Guarantee;
(g) Indebtedness of the Borrowers or any Marketing Subsidiaries under the Marketing 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 Excluded 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 Subsidiaries 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, 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 supply chain financing in the ordinary course of business which is nonrecourse to the Borrowers Facility 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 measurementMarketing Subsidiary Indebtedness Limit;
(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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection.
Appears in 2 contracts
Sources: Credit Agreement (Black Hills Corp /Sd/), Credit Agreement (Black Hills Corp /Sd/)
Restrictions on Indebtedness. None of the Borrowers will, and Such Borrower will not permit any of its Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to to, any Indebtedness (excluding accounts payable arising in the ordinary course and for fair value received), other than:
(a) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan Documents, including the Guaranty;
(b) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) Indebtedness in respect of any Derivative Contracts in the ordinary course of businessSubordinated Debt;
(d) Existing Senior DebtIndebtedness existing on the date hereof and listed and described on Schedule 9.1 hereto, and refundingsextensions, renewals or replacements or refinancings thereof; provided of any such Indebtedness that no such refunding or refinancing shall shorten the maturity or weighted average life to maturity or do not increase the outstanding principal amount of any of the Existing Senior Debtthereof;
(e) Indebtedness of BGI’s domestic Subsidiaries that are Guarantors not any Obligor to exceed $10,000,000, including such any other Obligor; or Guarantees by any Obligor of Indebtedness outstanding on the Closing Dateof any other Obligor;
(f) Indebtedness of BGI’s foreign Subsidiaries any Obligor to any Subsidiary of LTI that is not an Obligor or of any Subsidiary of LTI that is not an Obligor to any Obligor, provided, such Indebtedness shall not exceed $5,000,000 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 measurementaggregate;
(g) Guarantees by any Obligor of Indebtedness of the Borrowers or any Subsidiary of LTI that is a Guarantor not an Obligor, and Guarantees by any Subsidiary of LTI that constitutes a Synthetic Lease or Capitalized Lease or otherwise incurred to finance the acquisition is not an Obligor 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 Indebtedness of any Obligor; provided such guarantees shall not to exceed $30,000,000 at any time outstanding5,000,000 in the aggregate;
(h) purchase money Indebtedness of the Borrowers incurred by any Borrower or any Subsidiary thereof in connection with Consolidated Capital Expenditures and/or Consolidated Capital Leases, and extensions, renewals and replacement of any such Indebtedness that is a Guarantor in respect do not increase the outstanding principal amount thereof, so long as such Indebtedness does not exceed the value of Subordinated Debt;the assets so financed; and
(i) Indebtedness of the Borrowers owing to any Person that becomes a Subsidiary of such Borrower that is a Guarantor which is expressly subordinated to after 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;
date hereof, so long as (j1) such Indebtedness of a Person outstanding exists at the time it such Person becomes a Subsidiary and 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 in contemplation 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 such Person becoming a Subsidiary and (2) 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 of 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 Subsidiaries of the Borrowers which are Guarantors or to the Borrowers which results from an Investment permitted under §9.3(g) or by this clause (i);
(n) Indebtedness of BGI and its domestic Subsidiaries which are Guarantors incurred in connection with Sale Leaseback Transactions, 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 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (f), (j), (l) or (o)) shall not exceed fifteen percent $5,000,000 at any time outstanding and (15%iii) of Consolidated Total Assets such Indebtedness has been subordinated in favor 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 Lenders on terms and agree that if Indebtedness permitted in any subsection of this Section 9.1 is permitted conditions acceptable to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsectionLenders.
Appears in 2 contracts
Sources: Credit Agreement (Lionbridge Technologies Inc /De/), Credit Agreement (Lionbridge Technologies Inc /De/)
Restrictions on Indebtedness. None of Neither the Borrowers will, and will not permit Borrower nor any of its Subsidiaries toshall 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 to the Lenders and the Administrative Agent arising under any of this Agreement or the other Loan Documents;
(bi) endorsements for collection, deposit Indebtedness incurred by the Borrower or negotiation and warranties of products any Subsidiary with respect to any suretyship or services, in each case performance bond incurred in the ordinary course of businessits business and undrawn landfill closure bonds;
(ii) Guarantees of any of its Subsidiaries' obligations to governmental authorities in lieu of the posting of any landfill closure bonds;
(c) Unsecured Indebtedness in respect of the Borrower (and any Derivative Contracts in guarantee thereof by the ordinary course Guarantor), including commercial paper and the 364 Day Facility, which is pari passu or subordinated to the Obligations; provided that there does not exist a Default or Event of businessDefault at the time of the incurrence of such Indebtedness and no Default or Event of Default would be created by the incurrence of such Indebtedness;
(d) Existing Senior DebtIndebtedness of the Guarantor and the Borrower's Subsidiaries listed in Schedule 8.1(d) and any extension, renewal or refinancing by the Guarantor or such Subsidiary of 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 Guarantor or such Subsidiary; and
(i) Other Indebtedness of the Borrower's Subsidiaries (other than of the Guarantor), (ii) secured Indebtedness of the Borrower, (iii) Indebtedness with respect to drawn landfill closure bonds, 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;
(eiv) Indebtedness of BGI’s domestic Subsidiaries that are Guarantors not with respect 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 DocumentsPermitted Receivables Transactions; 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 Subsidiaries 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, 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 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) all such Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (f), (j), (l) or (o)in this Section 8.1(e) shall not exceed fifteen percent (15%) % of Consolidated Total Tangible 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 at any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsectiontime.
Appears in 2 contracts
Sources: Quarterly Report, Revolving Credit Agreement (Waste Management Inc)
Restrictions on Indebtedness. None of the Borrowers will, and The Borrower will not permit any of its Subsidiaries to, to create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness Indebtedness, or to become or be responsible in any manner (whether by agreement to purchase any obligations, stock, assets, goods or services, or to supply or advance any funds, assets, goods or services or otherwise) with respect to any Indebtedness, in each case, of any other Person other than the Borrower or any of its Subsidiaries, other than:
(a) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan Documents;Borrower’s Subsidiaries listed in Schedule 8.1(a), any extension, renewal or refinancing of such Indebtedness and any additional bonds issued and Capital Leases entered into from time to time after the Effective Date; provided that (i) if such Indebtedness is an extension, renewal or refinancing of existing Indebtedness, the terms and conditions of any such extensions, renewals or refinancings shall not increase the relative priority of such Indebtedness over the priority of the original Indebtedness, and (ii) in no event shall the aggregate outstanding principal amount of Indebtedness permitted by this §8.1(a) exceed the aggregate principal amount of the Indebtedness listed on Schedule 8.1(a) that is outstanding on the Effective Date (plus transaction costs, including premiums and fees, related thereto); and
(b) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) other 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;
Borrower’s Subsidiaries (eother than of the Guarantor) 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;
sum (gwithout duplication) 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 Subsidiaries 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, 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 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) the aggregate outstanding principal amount of Indebtedness of the Borrowers (permitted under paragraphs (j) or (lthis §8.1(b)) secured by Liens , plus (ii) the aggregate outstanding principal amount of secured Indebtedness of the Borrowers’ Borrower and its Subsidiaries permitted under subsections (under paragraphs (e), (f), (jk), (l) or and (om) of the definition of “Permitted Liens”, plus (iii) the aggregate amount of Indebtedness with respect to outstanding Permitted Receivables Transactions (determined in accordance with the proviso to the definition of “Indebtedness”)) , shall not exceed fifteen percent (15%) % of Consolidated Total Tangible 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 at any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsectiontime.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Waste Management Inc), Revolving Credit Agreement (Waste Management Inc)
Restrictions on Indebtedness. None of the Borrowers will, and 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:
(a) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan Documents;
(b) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) Indebtedness incurred in respect connection with the acquisition of any Derivative Contracts in the ordinary course of business;
(d) Existing Senior Debtreal or personal property by such Borrower or such Subsidiary or under any Capitalized Lease, and refundingsany refinancings, renewals and replacements thereof which contain terms no more onerous to the Borrowers than the Indebtedness so refinanced, renewed or refinancings thereof; replaced, provided that no such refunding or refinancing shall shorten the maturity or weighted average life to maturity or increase the aggregate principal amount of such Indebtedness (including 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) of all of the Borrowers and their Subsidiaries shall not exceed the aggregate amount of $10,000,000 at any one time;
(fd) Indebtedness in respect of BGI’s foreign Subsidiaries interest rate agreements, swaps or similar arrangements entered into to protect the Borrowers from changes in interest rates and not to exceed in the aggregate for all such foreign Subsidiaries $100,000,000, including such speculative purposes;
(e) Indebtedness outstanding not otherwise permitted by this § 10.1 existing 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 listed and described on the first day of the period of measurement;
(g) Indebtedness of the Borrowers or Schedule 10.1 hereto and 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 refinancings thereof 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;such original principal amount and on terms and conditions substantially similar thereto; and
(i) Indebtedness of evidenced by 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 Intercompany Canadian Loan Documents 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 Subsidiaries 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, 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 supply chain financing in the ordinary course of business which is nonrecourse to the Borrowers in an outstanding aggregate amount not to exceed $75,000,000; 20,000,000 at any time during the term of this Credit Agreement, provided that on or following the Borrowers are in current compliance with andClosing 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, after giving effect and (ii)(A) Indebtedness of the Domestic Borrower or any U.S. Subsidiary Guarantor owing to the proposed incurrence Canadian Borrower, (B) Indebtedness of Indebtedness, will continue to be in compliance with all any Subsidiary of the covenants 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 or to any other U.S. Subsidiary Guarantor, provided that all such intercompany Indebtedness identified in §§9 clauses (A), (B) and 10 hereof as if (C) herein shall be subordinated to the transaction occurred Obligations on terms satisfactory to the first day of the period of measurementAdministrative Agent;
(pg) unsecured guarantees by a Borrower or a Subsidiary of a Borrower of Indebtedness of BGI and its domestic Subsidiaries that are Guarantors in respect of earnout payments incurred in connection with any acquisition otherwise permitted under §9.5; 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 measurementthis § 10.1; and
(qh) other unsecured Indebtedness not otherwise permitted hereunder in an aggregate principal amount of BGI and its domestic Subsidiaries which are Guarantors$10,000,000, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, in respect of convertible notes, with a maturity date later than the Maturity Date; provided that no Default or Event of Default has occurred and is continuing at the Borrowers are in current compliance with and, time of the incurrence of such unsecured Indebtedness or would result 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsectionthereto.
Appears in 2 contracts
Sources: Credit Agreement (McCormick & Schmicks Seafood Restaurants Inc.), Revolving Credit Agreement (McCormick & Schmicks Seafood Restaurants Inc.)
Restrictions on Indebtedness. 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:
(a) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan Documents;
(b) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) 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 Subsidiaries, ten percent (10%) of Consolidated Total Assets and $100,000,00050,000,000 in the aggregate for any foreign Subsidiary, including such Indebtedness outstanding on the Closing Date but excluding Indebtedness under the Loan DocumentsDate; provided that the Borrowers Indebtedness of foreign Subsidiaries that are in current compliance with and, after giving effect party to the proposed incurrence of Indebtedness, will continue to be in compliance with Intercreditor Agreement and all of whose lenders are party to the covenants Intercreditor Agreement shall not be included in §§9 and 10 hereof as if the transaction occurred on the first day of the period of measurementthis calculation;
(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 Subsidiaries of the Borrowers which are Guarantors or to the Borrowers which results from an Investment permitted under §9.3(g) or (i);; and
(n) Indebtedness of BGI and its domestic Subsidiaries which are Guarantors incurred in connection with Sale Leaseback Transactions, 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 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (f), (j), (l) or (ol)) 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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Barnes Group Inc), Senior Unsecured Revolving Credit Agreement (Barnes Group Inc)
Restrictions on Indebtedness. None of the Borrowers willSuch 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:
(a) Indebtedness to the Lenders Banks and the Administrative Agent arising under any of the Loan Documents;
(b) current liabilities of such Borrower or such Subsidiary incurred in the ordinary course of business not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(c) 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 ss.8.8;
(d) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which such Borrower or such Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review;
(e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) 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 obligations under Capitalized Leases not to exceed exceeding $6,000,000 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;
(hg) Indebtedness incurred after the date hereof in connection with the acquisition of any real or personal property by such Borrower or such Subsidiary, provided that the aggregate principal amount of such Indebtedness of the Borrowers or and their Subsidiaries shall not exceed the aggregate amount of $3,000,000 at any Subsidiary that is a Guarantor in respect of Subordinated Debtone time;
(h) Indebtedness existing on the date hereof and listed and described on Schedule 9.1 hereto;
(i) Indebtedness of the Borrowers owing to any a Subsidiary of any Borrower existing on the Closing Date to such Borrower that Borrower, so long as such Subsidiary 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 Borrower hereunder or prior to the incurrence thereof;
(j) Indebtedness of a Person outstanding at the time it is first acquired by any date of the Borrowers in an acquisition permitted pursuant to §9.5.1(g), provided that any incurrence or existence of such Indebtedness was not created at such Subsidiary becomes a guarantor of all 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 Subsidiaries of the Borrowers which are Guarantors or Obligations hereunder on terms and conditions satisfactory to the Borrowers which results from an Investment permitted under §9.3(g) or (i)Agent;
(n) Indebtedness of BGI and its domestic Subsidiaries which are Guarantors incurred in connection with Sale Leaseback Transactions, 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 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Genrad Inc), Revolving Credit Agreement (Genrad Inc)
Restrictions on Indebtedness. None of The Borrowers and the Borrowers willGuarantors may, and will not may permit any of its their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liableliable for, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to (excluding the Lenders and the Administrative Agent arising Obligations) which is incurred under any a revolving credit facility or line of the Loan Documentscredit with another financial institution;
(b) endorsements Indebtedness which would result in a Default or Event of Default under §10 hereof or under any other provision of this Credit Agreement;
(c) An aggregate amount in excess of $1,000,000 at any one time in respect of taxes, assessments, governmental charges or levies and claims for collectionlabor, deposit materials and supplies for which payment therefor is required to be made in accordance with the provisions of §8.9 and has not been timely made;
(d) An aggregate amount in excess of $1,000,000 at any one time in respect of uninsured judgments or negotiation awards, with respect to which the applicable periods for taking appeals have expired, or with respect to which final and warranties of products unappealable judgments or services, in each case awards have been rendered; and
(e) Current unsecured liabilities incurred in the ordinary course of business;
, which (ci) Indebtedness in respect of any Derivative Contracts in the ordinary course of business;
are overdue for more than sixty (d60) Existing Senior Debtdays, 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;
(eii) 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 1,000,000 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;
time, and (miii) Indebtedness of Subsidiaries of the Borrowers which are Guarantors owing to any other Subsidiaries 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 not being contested in connection with Sale Leaseback Transactions, 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 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 Borrowersgood faith. For the avoidance of doubt, the parties acknowledge terms and agree that if provisions of this §9.1 are in addition to, and not in limitation of, the covenants set f▇▇▇▇ ▇▇ §▇▇ of this Credit Agreement. Notwithstanding anything contained herein to the contrary, the Borrowers and the Guarantors will not, and will not permit any Subsidiary to, incur any Indebtedness permitted for borrowed money which, together with other Indebtedness for borrowed money incurred by any Borrower, any Guarantor, and any Subsidiary since the date of the most recent compliance certificate delivered to the Administrative Agent in accordance with this Credit Agreement, exceeds $5,000,000 in the aggregate unless the Borrowers shall have delivered a compliance certificate in the form of Exhibit D-4 hereto to the Administrative Agent evidencing covenant compliance at the time of delivery of the certificate and on a pro-forma basis after giving effect to such proposed Indebtedness. The Administrative Agent will use good faith efforts to cause any compliance certificate delivered under this Credit Agreement to be delivered to each Lender in accordance with §15.12 and in any subsection of this Section 9.1 event on the same day or the Business Day following the day such compliance certificate is permitted received by the Administrative Agent. To the extent not already a party to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such IndebtednessIntercreditor Agreement, the BGI Guaranty shall not increase the amount Borrowers will cause each holder of Indebtedness deemed incurred under such subsectionfor borrowed money of the Borrowers which is a beneficiary of a Guaranty by a Subsidiary Guarantor, to sign and deliver to the Administrative Agent a joinder to the Intercreditor Agreement.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Sovran Self Storage Inc), Revolving Credit and Term Loan Agreement (Sovran Self Storage Inc)
Restrictions on Indebtedness. None of the Borrowers willNo Borrower shall become or be a guarantor or surety of, and will not permit any of its Subsidiaries to, or otherwise create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness, or become or be responsible in any manner (whether by agreement to purchase any obligations, stock, assets, goods or services, or to supply or advance any funds, assets, goods or services or otherwise) with respect to any undertaking or Indebtedness of any other Person, or incur any Indebtedness other than:
(a) Indebtedness to the Lenders Banks and the Administrative Agent arising under any of the Loan Documents;
(b) endorsements incurrence by any Borrower of guaranty, suretyship or indemnification obligations in connection with such Borrower’s performance of services for collection, deposit or negotiation and warranties of products or services, in each case incurred its respective customers in the ordinary course of its business;
(c) Indebtedness in respect of any Derivative Contracts in the ordinary course of businessone Borrower (other than a Designated LLC) to another Borrower (other than a Designated LLC);
(d) Existing Senior Debt, other Indebtedness existing on the date hereof 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 Debtlisted 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, (ii) existing Indebtedness of BGI’s domestic Subsidiaries 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 are Guarantors not to exceed $10,000,000in the event that after the Closing Date any Subsidiary of the Parent guaranties any Subordinated Debt, including 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 outstanding on under this subsection (e) shall not exceed .5x EBITDA for the Closing Dateperiod of four (4) consecutive fiscal quarters most recently ended;
(f) Indebtedness with respect to landfill closure bonds 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 Subsidiaries 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, 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 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 measurement30,000,000;
(pg) unsecured Noteholders’ Debt in principal amount not to exceed $75,000,000;
(h) Indebtedness of BGI and its domestic Subsidiaries that are Guarantors with respect to (i) the ▇▇▇▇▇▇▇ County Bonds in respect of earnout payments incurred an aggregate amount not to exceed (A) $34,969,367 in connection with any acquisition permitted under §9.5; provided that the Borrowers are Series 2000 Bonds, and (B) $9,804,000 in current compliance connection with andthe Series 2003 Bonds, after giving effect and (ii) Indebtedness with respect to other tax-exempt revenue bonds not to exceed $25,000,000 in 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; andaggregate;
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs 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 Bond Purchase Agreement by and among Wachovia Securities, Inc., The ▇▇▇▇▇▇▇ County Industrial Facilities and Pollution Control Financing Authority, ▇▇▇▇▇▇▇ County Disposal, Inc. and Parent;
(l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary Borrowers in respect of Swap Contracts satisfactory to the Administrative Agent; and
(m) 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 to fuel purchased in the ordinary course of business of the Borrowers (“Fuel Derivatives Obligations”); provided that if the creation, incurrence, assumption or existence of any Indebtedness would constitute a default or an event of default under the Noteholders’ Debt, then the creation, incurrence, assumption or existence of such Indebtedness, the BGI Guaranty Indebtedness shall not increase the amount of Indebtedness deemed incurred under such subsectionbe permitted hereunder.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Waste Industries Usa Inc), Revolving Credit Agreement (Waste Industries Usa Inc)
Restrictions on Indebtedness. None of the Borrowers will, and will not permit nor any of its their Subsidiaries toshall 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:
(a) Indebtedness to the Lenders and the Administrative Agent Lender arising under any of this Agreement or the Loan Documents;
(b) endorsements Indebtedness of the Borrowers in respect of judgments or awards which have been in force for collection, deposit less than the applicable period for taking an appeal so long as execution is not levied thereunder or negotiation in respect of which any Borrower shall at the time in good faith be prosecuting an appeal or proceedings for review and warranties in respect of products which a stay of execution shall have been obtained pending such appeal or services, review and in each case incurred in respect of which the ordinary course of businessBorrowers have maintained adequate reserves;
(c) Indebtedness in respect of any Derivative Contracts 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, such Indebtedness to be listed on SCHEDULE 7.1(C) hereto;
(d) Existing Senior DebtIndebtedness of the Borrowers incurred with respect to landfill closure bonds, and refundingssuch bonds to be listed on SCHEDULE 7.1(D) hereto, replacements or refinancings thereof; provided that no such refunding or refinancing shall shorten the maturity or weighted average life not to maturity or increase the principal exceed an aggregate amount of $5,000,000 outstanding at any of the Existing Senior Debt;time.
(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 Other Indebtedness of the Borrowers not exceeding to exceed an aggregate amount of $35,000,000 less any Indebtedness incurred under paragraph (g), in aggregate principal amount 5,000,000 at any one time outstanding;
(m) Indebtedness of Subsidiaries of the Borrowers which are Guarantors owing to any other Subsidiaries 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, 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 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 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 measurementtime; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Geowaste Inc), Revolving Credit Agreement (Geowaste Inc)
Restrictions on Indebtedness. None of The Borrower will not, nor will the Borrowers will, and will not Borrower 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:
(a) Indebtedness to the Lenders Banks and the Administrative Agent arising under any of the Loan Documents;
(b) Indebtedness to suppliers in respect of long term supply contracts consistent with industry practices;
(c) 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 (S)9.8;
(d) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the Borrower or such Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review;
(e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) 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 evidenced by the Old Notes or the Senior Notes (including without limitation any guarantees of BGI’s foreign such Senior Notes by 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 which 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 measurementGuarantors);
(g) obligations of the Borrower and its Subsidiaries under Capitalized Leases; provided that the aggregate principal amount of all -------- such 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 Borrower and its Subsidiaries permitted pursuant to Sale Leaseback Transactions referred to in §9.1(n), whether pursuant to a loan, financing lease or otherwisethis (S)10.1(g) in an shall not exceed the aggregate principal amount not to exceed of $30,000,000 5,000,000 at any time outstandingone time;
(h) Indebtedness existing on the date hereof and listed and described on Schedule 10.1 hereto, including the remaining unamortized portion of the Borrowers or any Subsidiary that is a Guarantor in respect -------- ---- original issue discount of Subordinated Debtsuch Indebtedness;
(i) Indebtedness of the Borrowers owing to any a Subsidiary of such the Borrower that which is a Guarantor existing on the Effective Date to the Borrower or another Subsidiary of the Borrower 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 Subsidiaries 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, 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 supply chain financing in the ordinary course of business which is nonrecourse to the Borrowers in an aggregate amount not to exceed $75,000,000Guarantor; provided that the Borrowers same are evidenced by -------- promissory notes, leases or contracts in current compliance with and, after giving effect form and substance satisfactory to the proposed incurrence of Indebtedness, will continue Agent which are pledged to be in compliance with all the Agent for the benefit of the covenants in §§9 and 10 hereof as if the transaction occurred on the first day of the period of measurementBanks or evidenced only by open account;
(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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Petro Stopping Centers Holdings Lp), Revolving Credit and Term Loan Agreement (Petro Stopping Centers L P)
Restrictions on Indebtedness. None of The Borrowers and the Borrowers willGuarantors may, and will not may permit any of its their respective Subsidiaries to, create, incur, assume, guarantee or be or remain liableliable for, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to (excluding the Lenders and the Administrative Agent arising Obligations) which is incurred under any a revolving credit facility or line of the Loan Documentscredit with another financial institution;
(b) endorsements Indebtedness which would result in a Default or Event of Default under §10 hereof or under any other provision of this Credit Agreement;
(c) An aggregate amount in excess of $1,000,000 at any one time in respect of taxes, assessments, governmental charges or levies and claims for collectionlabor, deposit materials and supplies for which payment therefor is required to be made in accordance with the provisions of §8.9 and has not been timely made;
(d) An aggregate amount in excess of $1,000,000 at any one time in respect of uninsured judgments or negotiation awards, with respect to which the applicable periods for taking appeals have expired, or with respect to which final and warranties of products unappealable judgments or services, in each case awards have been rendered; and
(e) Current unsecured liabilities incurred in the ordinary course of business;
, which (ci) Indebtedness in respect of any Derivative Contracts in the ordinary course of business;
are overdue for more than sixty (d60) Existing Senior Debtdays, 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;
(eii) 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 1,000,000 in the aggregate for all such foreign Subsidiaries $100,000,000at any one time, including such Indebtedness outstanding on and (iii) are not being contested in good faith. The terms and provisions of this §9.1 are in addition to, and not in limitation of, the Closing Date but excluding Indebtedness under covenants set f▇▇▇▇ ▇▇ §▇▇ of this Credit Agreement. Notwithstanding anything contained herein to the Loan Documents; provided that contrary, the Borrowers are and the Guarantors will not, and will not permit any Subsidiary to, incur any Indebtedness for borrowed money which, together with other Indebtedness for borrowed money incurred by any Borrower, any Guarantor, and any Subsidiary since the date of the most recent compliance certificate delivered to the Administrative Agent in current accordance with this Credit Agreement, exceeds $5,000,000 in the aggregate unless the Borrowers shall have delivered a compliance with and, certificate in the form of Exhibit D-4 hereto to the Administrative Agent evidencing covenant compliance at the time of delivery of the certificate and on a pro-forma basis after giving effect to the such proposed incurrence of Indebtedness, . The Administrative Agent will continue use good faith efforts to cause any compliance certificate delivered under this Credit Agreement to be delivered to each Lender in compliance accordance with all of the covenants §15.12 and in §§9 and 10 hereof as if the transaction occurred any event on the first same day of or the period of measurement;
(g) Indebtedness of Business Day following the Borrowers or any Subsidiary that day such compliance certificate 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 received by 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 Subsidiaries 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, 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 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsectionAgent.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Sovran Acquisition LTD Partnership), Revolving Credit and Term Loan Agreement (Sovran Self Storage Inc)
Restrictions on Indebtedness. None of Neither the Borrowers will, and will not permit Company nor any of its Subsidiaries toshall 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:
(a) Indebtedness to the Lenders and the Administrative Agent Purchasers hereunder or Indebtedness arising under any of the Loan Documents1998 Note Agreement;
(b) endorsements incurrence by the Company or any of its Subsidiaries of guaranty, suretyship or indemnification obligations in connection with such Person’s performance of services for collection, deposit or negotiation and warranties of products or services, in each case incurred its respective customers in the ordinary course of its business;
(c) incurrence by the Company or any of its Subsidiaries (other than a Designated LLC) of Indebtedness in respect to the Company or to another of any Derivative Contracts in the ordinary course of businessits Subsidiaries (other than a Designated LLC);
(d) Existing Senior 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, (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, and refundings, replacements or refinancings thereof; provided that no in the event that after the Effective Date any Subsidiary of the Company guaranties any Subordinated Debt, the terms of such refunding guaranty shall provide for the release of such guaranty upon the sale of stock or refinancing shall shorten all or substantially all of the maturity or weighted average life to maturity or increase assets of such Subsidiary (even if such sale was made in a foreclosure); provided that the principal aggregate amount of any of the Existing Senior Debt;
such Indebtedness under this subsection (e) Indebtedness shall not exceed .5x EBITDA for the period of BGI’s domestic Subsidiaries that are Guarantors not to exceed $10,000,000, including such Indebtedness outstanding on the Closing Datefour (4) consecutive fiscal quarters most recently ended;
(f) Indebtedness of BGI’s foreign Subsidiaries not with respect 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 landfill closure bonds 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 Subsidiaries 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 Company and its domestic Subsidiaries which are Guarantors incurred in connection with Sale Leaseback Transactions, 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 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 measurement5,000,000;
(pg) unsecured Bank Debt in principal amount not to exceed $300,000,000;
(h) 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 Borrowers are in current compliance with and, after giving effect to the proposed incurrence of Indebtedness, will continue Designated LLCs evidenced by Designated Intercompany Debentures in an aggregate amount not 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 measurementexceed $100,000,000; and
(qi) unsecured incurrence by a Designated LLC of Indebtedness to the Company or any of BGI and its domestic it Subsidiaries in an aggregate amount not to exceed $100,000,000, whether in the form of intercompany payables, advances, notes or debentures, each of which, regardless of form, shall be pledged to the Collateral Agent, the proceeds of which are Guarantorsloaned or contributed as capital to a direct or indirect Subsidiary of such Designated LLC, includingwhich Subsidiary is a Guarantor;
(j) Guaranty obligations of the Company with respect to undertakings by ▇▇▇▇▇▇▇ County Disposal, without limitationInc. (or ▇▇▇▇▇▇▇ County Disposal, convertible notesLLC as successor to ▇▇▇▇▇▇▇ County Disposal, in each caseInc.) under (i) the Remarketing and Interest Services Agreement by and between ▇▇▇▇▇▇▇ County Disposal, on terms no more restrictive than this Credit AgreementInc., andthe Company and Wachovia Securities, in respect of convertible notesInc. and (ii) the Bond Purchase Agreement by and among Wachovia Securities, with a maturity date later than Inc., The ▇▇▇▇▇▇▇ County Industrial Facilities and Pollution Control Financing Authority, ▇▇▇▇▇▇▇ County Disposal, Inc. and the Maturity DateCompany; 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 creation, incurrence, assumption or existence of any Indebtedness would constitute a default or an event of default under the first day Bank Debt, then the creation, incurrence, assumption or existence of the period of measurement. Notwithstanding the foregoing, the aggregate amount of (i) such Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 be permitted in any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsectionhereunder.
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. None 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 Borrowers willBorrower) 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:
(a) Indebtedness to the Lenders and the Administrative Agent Banks arising under any of the Loan Documents, and Indebtedness and obligations in respect of the Interest Rate Contract(s) required pursuant to §7.18;
(b) current liabilities of the Borrower or its Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(c) 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;
(d) Indebtedness in respect of judgments or awards the existence of which does not create an Event of Default;
(e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(cf) 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 in respect of any Derivative Contracts in Borrower, the ordinary course of business;
(d) Existing Senior Debt, and refundings, replacements Trust 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;
Borrower’s Subsidiaries (eother than Subsidiary Guarantors) under environmental indemnities and guarantees with respect to customary exceptions to exculpatory language with respect to Non-recourse Indebtedness of BGIBorrower’s domestic Subsidiaries or Unconsolidated Affiliates permitted pursuant to §8.3(i) (it being agreed that are Guarantors any such indemnity or guaranty shall not cause such Non-recourse Indebtedness to exceed $10,000,000, including such be deemed to be Recourse Indebtedness outstanding on the Closing Date;
(f) Indebtedness of BGI’s foreign Subsidiaries not to exceed and provided that in the aggregate for all event any claim is made against Borrower, the Trust or any of their respective Subsidiaries with respect to such foreign Subsidiaries $100,000,000indemnities, including guarantees or exceptions, the amount so claimed shall be considered a recourse liability of 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 measurementPerson);
(g) Indebtedness in respect of the Borrowers or any Subsidiary that is reverse repurchase agreements having a Guarantor that constitutes a Synthetic Lease or Capitalized Lease or otherwise incurred term of not more than one hundred eighty (180) days with respect to finance the acquisition of fixed or capital assets (other than pursuant to Sale Leaseback Transactions referred to Investments described in §9.1(n8.3(d) or (e), 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) 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 the Borrowers 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 that is a Guarantor of either of them on account of such guaranty or (ii) 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 Subordinated Debt;such obligation); and
(i) Indebtedness in respect 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 purchase money financing for equipment, computers and reasonably acceptable to the Administrative Agent prior to the incurrence thereof;
(j) Indebtedness of a Person outstanding at the time it is first vehicles 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 Subsidiaries 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, 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 supply chain financing in the ordinary course of the Borrower’s business which is nonrecourse to the Borrowers in an aggregate amount not to exceed exceeding $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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection5,000,000.00.
Appears in 2 contracts
Sources: Secured Master Loan Agreement (Ramco Gershenson Properties Trust), Secured Master Loan Agreement (Ramco Gershenson Properties Trust)
Restrictions on Indebtedness. None of the Borrowers willThe Borrower will not, and will not permit its respective Subsidiaries or any of its Subsidiaries the Guarantors to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan Documents;
(b) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(c) Indebtedness in respect of taxes, assessments (excluding assessments with respect to PACE Loans unless such PACE Loans are permitted under this Agreement), governmental charges or levies, assessments and other obligations in respect of PACE Loans permitted under this Agreement and claims for labor, materials and supplies, in each case, to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(d) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in a Default;
(e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) 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) subject to the provisions of §9, Recourse Indebtedness of BGI’s foreign Subsidiaries not to exceed in the aggregate for all such foreign Subsidiaries $100,000,000which is Secured Debt (including, including such Indebtedness outstanding on the Closing Date but excluding Indebtedness under the Loan Documentswithout limitation, Equity Pledge Secured Debt that is Recourse Indebtedness); provided that the Borrowers are in current compliance with and, after giving effect 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 proposed incurrence extent the same shall at any time constitute Recourse Indebtedness which is Secured Debt), determined on a Consolidated basis, shall not exceed percent (10.0%) 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 measurementConsolidated Total Asset Value);
(g) Non-Recourse 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 Subsidiaries of fixed or capital assets Parent (other than pursuant to Sale Leaseback Transactions referred to in §9.1(nany Subsidiaries of Borrower that directly or indirectly own or lease a Subject Property), 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) Non-Recourse Indebtedness of the Borrowers Borrower or any Subsidiary that is a Guarantor constituting purchase money indebtedness or incurred in respect of Subordinated Debtconnection with equipment financing, not to exceed $4,000,000.00 in the aggregate outstanding at any time;
(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 thereofIntentionally Omitted;
(j) Indebtedness subject to the provisions of a Person outstanding at the time it §9, Unsecured Debt which 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 pari passu 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 Indebtedness described in an aggregate principal amount not to exceed $15,000,000 at any time outstanding;
clause (la) 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 Subsidiaries 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, 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 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 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 measurementabove; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection.
Appears in 2 contracts
Sources: Credit Agreement (Gladstone Commercial Corp), Credit Agreement (Gladstone Commercial Corp)
Restrictions on Indebtedness. None of the Borrowers willThe Company shall not, and will not nor shall it permit any of its Subsidiaries Subsidiary to, create, incur, assume, guarantee assume or be or remain liable, contingently or otherwise, with respect suffer to exist any Indebtedness other than:
(a) Indebtedness to of the Lenders Company and its Subsidiaries under the Bank Credit Agreement and the Administrative Agent arising under any of 2016 NPA (either on an unsecured basis or on a secured basis if the Loan DocumentsNotes are equally and ratably secured pari passu therewith);
(b) endorsements Indebtedness 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 collection, deposit or negotiation and warranties of products or services, in each case incurred their respective customers in the ordinary course of business;
(c) Indebtedness in respect of any Derivative Contracts in the ordinary course of businesstheir businesses;
(d) Existing Senior Debtso long as no Event of Default exists or would result therefrom (including that the Company would not violate the covenants set forth in Sections 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 refundings, replacements or refinancings thereof; provided that no such refunding or refinancing shall shorten (z) in the maturity or weighted average life to maturity or increase the principal amount case of any of Permitted Intercompany Financing, subject to the Existing Senior Debtrequirements set forth in Section 10.4.3;
(e) Indebtedness of BGI’s domestic the Company or any of its Subsidiaries that are Guarantors not to exceed $10,000,000incurred in connection with the acquisition or lease of any equipment or other property by the Company or any of its Subsidiaries under any Synthetic Lease, including such Indebtedness outstanding on the Closing DateCapitalized Lease or other lease arrangement or purchase money financing;
(f) Indebtedness of BGI’s foreign the Company or any of its Subsidiaries not with respect to exceed in 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 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 Company or any 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 measurementits Subsidiaries;
(g) Indebtedness of the Borrowers Company or any Subsidiary that is a Guarantor that constitutes a Synthetic Lease or Capitalized Lease or otherwise incurred to finance of its Subsidiaries in respect of Swap Contracts (including Fuel Derivatives Obligations) entered into in the acquisition ordinary course of fixed or capital assets (other than pursuant to Sale Leaseback Transactions referred to in §9.1(n)business and not for speculative purposes; Waste Connections, whether pursuant to a loan, financing lease or otherwise) in an aggregate principal amount not to exceed $30,000,000 at any time outstanding;Inc. Note Purchase Agreement
(h) Indebtedness of the Borrowers Company or any Subsidiary that is a Guarantor in of its Subsidiaries with respect to letters of Subordinated Debtcredit of Persons acquired by the Company or any of its Subsidiaries;
(i) Indebtedness of the Borrowers owing to Company or any Subsidiary of its Subsidiaries in respect of IRBs; provided, that (a) such Borrower that is a Guarantor which is expressly subordinated Indebtedness may be secured only to the prior payment 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 full pro forma compliance with each of the financial covenants set forth in cash Sections 10.13 and 10.14 (using Consolidated EBITDA of all Obligations on terms disclosed the Consolidated Group as of the last day of the applicable Pro Forma Reference Period (but including any addbacks to and reasonably acceptable Consolidated EBITDA permitted pursuant to the Administrative Agent prior to Bank Credit Agreement during the incurrence thereofperiod 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 a Person outstanding at the time it is first acquired by any of the Borrowers in an acquisition Company and its Subsidiaries (other than as permitted pursuant to §9.5.1(gunder other subsections hereof), provided that any such Indebtedness was not created at in excess of $20,000,000 (or its equivalent in the time of or relevant currency) 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;
(lk) additional other unsecured 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 Subsidiaries 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 Company and its domestic Subsidiaries which are Guarantors incurred in connection with Sale Leaseback TransactionsSubsidiaries; provided, in an aggregate principal amount not to exceed $25,000,000 that, at any the time outstanding;
of incurrence thereof, (oa) Indebtedness of BGI the Company and its domestic Subsidiaries which are Guarantors incurred in connection with accounts receivable securitizations on customary terms or 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 shall be in compliance with all each of the financial covenants set forth in §§9 Sections 10.13 and 10 hereof 10.14 determined on a pro forma basis (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) (including a pro forma application of the net proceeds thereof) as if the transaction occurred such Indebtedness had been incurred on the first day of the period applicable Pro Forma Reference Period, and (b) the aggregate principal amount of measurementall 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;
(pl) unsecured Indebtedness of BGI the Company and its domestic Subsidiaries that are Guarantors in respect of earnout payments incurred in connection with any acquisition permitted under §9.5; provided that this Agreement and 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 measurementNotes; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (im) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary a Receivables SPV in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsectiona 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. None Except with the prior written consent of Requisite Lenders, the Borrowers will, and Borrower will not permit any of its Subsidiaries to, create, incur, assume, guarantee or be become or remain liable, contingently or otherwise, or agree not to do any of same, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders and the Administrative Agent arising under any this Agreement, Indebtedness to the lenders under the Revolving Credit Agreement, Indebtedness to BankBoston arising under the BankBoston Term Loan and Indebtedness to the holders of the Loan DocumentsUnsecured Term Notes arising thereunder;
(b) endorsements current liabilities of the Borrower incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(c) 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 7.4;
(d) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the Borrower shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review;
(e) Endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(cf) Indebtedness in respect consisting of any Derivative Contracts purchase money financing for equipment used 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; Borrower's business provided that the Borrowers are in current compliance with and, after giving effect to the proposed incurrence amount of Indebtedness, will continue to be in compliance with all each such financing may not exceed 100% of the covenants in §§9 and 10 hereof as if the transaction occurred on the first day cost of the period of measurement;purchased property.
(g) Nonrecourse Indebtedness of the Borrowers or any Subsidiary that is Borrower secured by a Guarantor that constitutes Lien on a Synthetic Lease or Capitalized Lease or otherwise incurred to finance the acquisition of fixed or capital assets Portfolio Property (other than pursuant Woodbury Common for so long as SECTION 8.1 remains in effect) which is completely non-recourse to Sale Leaseback Transactions referred the Borrower and to the REIT to the extent the same does not create a violation of SECTIONS 9.4, 9.5, 9.6 OR 9.7 provided that (i) upon the creation or assumption of any such Indebtedness Borrower shall provide the Agent with a notice describing the terms of such Indebtedness and the security therefor and a copy of the promissory note or other instrument containing the nonrecourse provisions, and (ii) if the terms of such Indebtedness include financial covenants, such covenants are determined by the Agent in §9.1(n), whether pursuant its sole discretion to a loan, financing lease or otherwise) be less stringent than the covenants set forth in an aggregate principal amount not to exceed $30,000,000 at any time outstanding;ARTICLE IX.
(h) Indebtedness of Borrower other than Nonrecourse Indebtedness for borrowed money to the Borrowers extent the same does not create a violation of SECTIONS 9.4, 9.5, 9.6 OR 9.7 provided that (i) upon the creation or assumption of any Subsidiary that is such Indebtedness Borrower shall provide the Agent with a Guarantor notice describing the terms of such Indebtedness, (ii) such Indebtedness must be permitted under the terms of the Unsecured Term Notes, (iii) if the terms of such Indebtedness include financial covenants such covenants are determined by the Agent, in respect its sole discretion, to be not more stringent than the covenants set forth in ARTICLE IX, and (iv) except for facilities having BankBoston as sole lender or as agent for a group of Subordinated Debt;lenders, such Indebtedness has a term which matures at least twenty-four (24) months after the Termination Date.
(i) Indebtedness consisting of purchase money financing for Land intended for development in connection with future Construction Projects to the extent the same does not create a violation of SECTIONS 9.4, 9.5, 9.6 OR 9.7 provided that (i) the amount of such Indebtedness does not exceed 100% of the Borrowers owing to cost of the purchased Land, (ii) the Indebtedness is secured by a Lien on the purchased Land, (iii) the aggregate amount of the Indebtedness described in this paragraph outstanding at any Subsidiary time shall not exceed $15,000,000.00, and (iv) upon the creation of any such Indebtedness Borrower shall provide the Agent with a notice describing the terms 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;Indebtedness.
(j) Indebtedness of a Person outstanding at Borrower related to 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 Subsidiaries of the Borrowers which are Guarantors or Simon Partnership to the Borrowers which results from an Investment permitted under §9.3(g) or (i);
(n) Indebtedness extent the same does not create a violation of BGI and its domestic Subsidiaries which are Guarantors incurred in connection with Sale Leaseback Transactions, 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 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection.SECTION
Appears in 2 contracts
Sources: Term Loan Agreement (Chelsea Gca Realty Inc), Term Loan Agreement (Chelsea Gca Realty Partnership Lp)
Restrictions on Indebtedness. None 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 Borrowers willBorrower) 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:
(a) Indebtedness to the Lenders and the Administrative Agent Banks arising under any of the Loan Documents, and Indebtedness and obligations in respect of the Interest Rate Contract(s) required pursuant to §7.18;
(b) current liabilities of the Borrower or its Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(c) 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;
(d) Indebtedness in respect of judgments or awards the existence of which does not create an Event of Default;
(e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(cf) 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 in respect of any Derivative Contracts in Borrower, the ordinary course of business;
(d) Existing Senior Debt, and refundings, replacements Trust 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;
Borrower’s Subsidiaries (eother than Subsidiary Guarantors) under environmental indemnities and guarantees with respect to customary exceptions to exculpatory language with respect to Non-recourse Indebtedness of BGIBorrower’s domestic Subsidiaries or Unconsolidated Affiliates permitted pursuant to §8.3(i) (it being agreed that are Guarantors any such indemnity or guaranty shall not cause such Non-recourse Indebtedness to exceed $10,000,000, including such be deemed to be Recourse Indebtedness outstanding on the Closing Date;
(f) Indebtedness of BGI’s foreign Subsidiaries not to exceed and provided that in the aggregate for all event any claim is made against Borrower, the Trust or any of their respective Subsidiaries with respect to such foreign Subsidiaries $100,000,000indemnities, including guarantees or exceptions, the amount so claimed shall be considered a recourse liability of 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 measurementPerson);
(g) Indebtedness in respect of the Borrowers or any Subsidiary that is reverse repurchase agreements having a Guarantor that constitutes a Synthetic Lease or Capitalized Lease or otherwise incurred term of not more than one hundred eighty (180) days with respect to finance the acquisition of fixed or capital assets (other than pursuant to Sale Leaseback Transactions referred to Investments described in §9.1(n8.3(d) or (e), 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) 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 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 Subsidiaries 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, 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 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (f), (j), (l) or (o)) shall not exceed fifteen percent (15%) of Consolidated Total Assets 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 Borrowers, determined as payment of the end such costs; and provided further that Indebtedness 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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or Borrower or any of its SubsidiariesSubsidiaries 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, and BGI guarantees Borrower or a Subsidiary of either of them on account of such guaranty or (ii) with respect to any other guaranty obligation which the obligations Majority Banks may in their sole discretion approve in writing to not be included for the purposes of any §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 of the Borrower but not Secured Indebtedness; and
(i) Indebtedness in respect of such Indebtednesspurchase money financing for equipment, computers and vehicles acquired in the BGI Guaranty shall ordinary course of the Borrower’s business not increase the amount of Indebtedness deemed incurred under such subsectionexceeding $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. None of the Borrowers willThe 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:
(a) Indebtedness to the Lenders Lenders, the Issuing Lender and the Administrative Agent arising under any of the Loan Documents;
(b) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) Indebtedness in respect of any Derivative Contracts in existing on the ordinary course of businessdate hereof and listed and described on Schedule 9.1 hereto;
(d) Existing Senior DebtIndebtedness incurred in connection with guarantees and/or comfort letters issued by the Borrower in respect of obligations of its Subsidiaries or Joint Ventures, 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 aggregate amount of any such Indebtedness of the Existing Senior DebtBorrower shall not exceed $50,000,000 at any one time;
(e) Indebtedness in respect of BGI’s domestic Subsidiaries that are Guarantors not to exceed $10,000,000(i) derivative contracts described in clause (h) of the definition of the term “Indebtedness” consisting of foreign exchange contracts entered into in the ordinary course of business and for non-speculative purposes, including such Indebtedness outstanding on and (ii) any guarantees made by the Closing DateBorrower of the contracts described in clause (i) of this Section 9.1(e) entered into by Subsidiaries;
(f) Indebtedness in respect of BGI’s foreign Subsidiaries not to exceed in the aggregate for all such foreign Subsidiaries $100,000,000Capitalized Leases and Synthetic Leases, 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 aggregate principal amount of Indebtedness, will continue to be in compliance with all such Indebtedness of the covenants in §§9 and 10 hereof as if Borrower shall not exceed the transaction occurred on the first day aggregate amount of the period of measurement$25,000,000 at any one time;
(g) Indebtedness in respect of letters of credit in the Borrowers or any Subsidiary that is a Guarantor that constitutes a Synthetic Lease or Capitalized Lease or otherwise incurred to finance the acquisition ordinary course of fixed or capital assets business (other than pursuant to Sale Leaseback Transactions referred to in §9.1(nLetters of Credit), 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 DebtInvestments permitted pursuant to Section 9.3(g) and Section 9.3(h) hereof;
(i) Indebtedness of the Borrowers owing to any Subsidiary of such Borrower that is a Guarantor which is expressly subordinated to the prior payment type described in full in cash of all Obligations on terms disclosed to and reasonably acceptable to the Administrative Agent prior to the incurrence thereof;
clause (jg) 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 definition 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 Subsidiaries 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, 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 supply chain financing in the ordinary course of business which is nonrecourse to the Borrowers “Indebtedness” 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 50,000,000 at any acquisition permitted under §9.5; 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 measurementtime; and
(qj) unsecured other Indebtedness of BGI the Borrower and its domestic Subsidiaries which are GuarantorsSubsidiaries, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 the proposed incurrence aggregate principal amount of Indebtedness, will continue to be in compliance with all such Indebtedness of the covenants in §§9 Borrower and 10 hereof as if the transaction occurred on the first day of the period of measurement. Notwithstanding the foregoing, its Subsidiaries shall not exceed the aggregate amount of (i) $100,000,000 at any one time, and provided further that any intercompany Indebtedness of incurred solely among the Borrowers (Borrower and its Subsidiaries which would otherwise be permitted under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (f), (j), (l) or (o)Section 9.1(h) shall not exceed fifteen percent (15%) of Consolidated Total Assets be included for the purposes 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 limit on Indebtedness permitted set forth in any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection9.1(j).
Appears in 2 contracts
Sources: Revolving Credit Agreement (Coach Inc), Revolving Credit Agreement (Coach Inc)
Restrictions on Indebtedness. None of the Borrowers will, and The Apparel Obligors 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:
(a) : Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan Documents;
; current liabilities of such Apparel Obligor incurred in the ordinary course of business not incurred through (bi) 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; 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 ss.8.8; Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which such Borrower or such Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review; endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) Indebtedness ; obligations under Capitalized Leases not exceeding $2,500,000 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 aggregate 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 Apparel Obligors 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 acquisition after the date hereof of any surety bondsreal or personal property by such Apparel Obligor, Performance Letters of Credit or other similar performance bonds required pursuant to any contractual Obligation or requirement of law to which any of provided that the Borrowers or any of their Subsidiaries which are Guarantors are subject in an aggregate principal amount of all such Indebtedness of all Apparel Obligors shall not to exceed the aggregate amount of $15,000,000 1,000,000 at any one time; and further, provided that the aggregate amount of indebtedness permitted under this clause (g) and the immediately preceding clause (f) of this ss.9.1 shall not at any time outstanding;
(l) additional together exceed $2,500,000. Indebtedness of the Borrowers not exceeding $35,000,000 less Guarantor under its License Shoe Guaranty; Indebtedness existing on the date hereof and listed and described on Schedule 9.1 hereto; obligations of any Apparel Obligor under any lease treated as an operating lease; Indebtedness incurred to any Lender under paragraph (g), in aggregate principal amount at any one time outstanding;
(m) interest rate swap agreements or similar interest rate protection agreements; Indebtedness of Subsidiaries the Guarantor under any guarantee of the Borrowers which obligations of its Subsidiaries provided, that such obligations are Guarantors owing to any other Subsidiaries 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, 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 supply chain financing in the ordinary course of business which is nonrecourse to and not incurred (i) through the Borrowers borrowing of money, or (ii) through the obtaining of credit (except for credit on an open account basis customarily extended and 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 fact extended in connection with any acquisition permitted under §9.5; provided that the Borrowers are in current compliance with and, after giving effect to the proposed incurrence normal purchases of Indebtedness, will continue to be in compliance with all of the covenants in §§9 goods 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, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (jservices) or (l)iii) secured by Liens plus (ii) under Capitalized Leases or under similar financing arrangements; and Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e)any Apparel Obligor, (f), (j), (l) or (o)) shall not exceed fifteen percent (15%) of Consolidated Total Assets of the Borrowers, determined existing as of the end of Closing Date, in connection with 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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsectionSubordinated Debt.
Appears in 2 contracts
Sources: Credit Agreement (Baker J Inc), Credit Agreement (Baker J Inc)
Restrictions on Indebtedness. None of the Borrowers willThe 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:
(a) 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 Administrative Agent Agents arising under any of the Loan Documents;
(b) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) Indebtedness incurred in respect connection with the acquisition after the Closing Date of any Derivative Contracts Property (and in any event not more than ninety (90) days from the ordinary course date of businesssuch acquisition) by the Borrower or such Subsidiary as contemplated by Section 8.2(x);
(d) Existing Senior Debt, and refundings, replacements obligations under 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 guaranties of any of the Existing Senior DebtCapitalized Leases;
(e) Indebtedness in respect of BGI’s domestic Subsidiaries Hedging Agreements entered into for hedging purposes only and not for speculation; provided that are Guarantors not nothing in this Section 8.1(e) shall be deemed to exceed $10,000,000, including such Indebtedness outstanding on the Closing Dateprohibit equity hedging arrangements that constitute Restricted Payments permitted pursuant to Section 8.4;
(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 existing on the Closing Date but excluding and listed and described on Schedule 8.1 hereto including any extensions or refinancings thereof on substantially similar terms as the Indebtedness under being refinanced and provided there is no increase in 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 measurementamount thereof;
(g) unsecured Indebtedness of any of the Borrower’s Subsidiaries to, or in respect of Obligations of, the Borrower or another 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;
(h) unsecured Indebtedness of the Borrowers Borrower to, or in respect 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 Subsidiary that is other Investments;
(i) unsecured Indebtedness of the Borrower having a Guarantor that constitutes a Synthetic Lease or Capitalized Lease or otherwise incurred to finance maturity at least three (3) months after the acquisition of fixed or capital assets (other than pursuant to Sale Leaseback Transactions referred to Maturity Date, in §9.1(n), whether pursuant to a loan, financing lease or otherwise) in an aggregate principal amount not to exceed $30,000,000 200,000,000; provided that at any the time outstanding;
(h) Indebtedness of the Borrowers incurrence such Indebtedness, no Default or any Subsidiary that Event of Default has occurred and 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;continuing or would result therefrom; and
(j) Indebtedness of a Person the Borrower and its Subsidiaries in addition to Indebtedness otherwise permitted by clause (a) to (i) above with an aggregate principal Dollar Equivalent amount outstanding at the time it is first acquired by any not to exceed 40% of Consolidated Tangible Net Worth (determined as of the Borrowers in an acquisition permitted pursuant to §9.5.1(glast day of the Fiscal Quarter most recently ended), provided that any such Indebtedness was not created at the time of or in contemplation or in anticipation incurrence of such acquisition;
(k) Indebtedness no Default or Event of any of the Borrowers Default has occurred and is continuing 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 Subsidiaries 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, 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 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsectionwould 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. None Create, assume, or otherwise become remain obligated in respect of, or permit or suffer to exist or to be created, assumed or incurred or to be outstanding, any (A) indebtedness or liability for borrowed money or for the deferred purchase price of property or services; (B) obligations as lessee under capital leases exceeding $500,000, except capital leases entered into in the Borrowers willordinary course of business; (C) current liabilities in respect of unfunded vested benefits under any benefits plan; (D) obligations under letters of credit, bankers’ acceptances, bank guarantees and will not permit 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 toSubsidiaries, create, incur, assume, whether or not the obligations have been assumed (other than the obligations under the Note) or guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness obligations other than:
than (a1) Indebtedness to the Lenders and the Administrative Agent arising under any indebtedness of the Loan Documents;
Borrower secured by purchase-money liens as permitted in Section 5.2(b)(ii)(A) below, (b2) endorsements accounts payable or other unsecured indebtedness to trade creditors for collection, deposit goods or negotiation services and warranties of products or services, current operating liabilities (other than for borrowed money) in each case which are incurred in the ordinary course of business;
business of the Borrower, (c3) Indebtedness in respect extensions, refinancings, modifications, amendments and restatements of any Derivative Contracts items described in the ordinary course of business;
clauses (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(n1), 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(g2), 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 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 (gindebtedness), in aggregate principal amount at any one time outstanding;
(m4) Indebtedness of bank guarantees provided by Borrower and the Subsidiaries of the Borrowers which are Guarantors owing to any other Subsidiaries 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, 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 supply chain financing in the ordinary course of business which is nonrecourse to the Borrowers in an aggregate amount at any time outstanding not to exceed $75,000,000; provided that 250,000 excluding any existing bank guarantees and (5) indebtedness evidenced by 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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 measurementNote. Notwithstanding the foregoingforegoing restrictions, the Borrower and the Subsidiaries may borrow without the Holder’s consent up to an aggregate amount of $18,000,000 (i) Indebtedness of excluding the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (f), (j), (l) or (o)) shall not exceed fifteen percent (15%) of Consolidated Total Assets of the Borrowers, determined Loan and any existing indebtedness as of the end date of the then most recently completed fiscal year of the Borrowers. For the avoidance of doubt, the parties acknowledge Purchase Agreement) for working capital and agree that if Indebtedness permitted in any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsectiongeneral corporate purposes.”
Appears in 2 contracts
Sources: Note Purchase Agreement, Note Purchase Agreement (Yatra Online, Inc.)
Restrictions on Indebtedness. None of the Borrowers willThe Borrower will not, and will not permit any of 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:
(a) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan DocumentsBorrower or its Subsidiaries of any kind whatsoever existing on the Effective Date;
(b) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of businessPermitted Refinancing Indebtedness;
(c) Indebtedness in respect by an Operating Subsidiary of any Derivative Contracts the Borrower that is non-recourse to the Borrower and incurred for working capital purposes or in the ordinary course form of businessCapitalized Lease Liabilities, mortgage financings or purchase money obligations solely for such Subsidiary incurring such Indebtedness;
(d) Existing Senior DebtIndebtedness incurred in the ordinary course, and refundingsexcluding, replacements or refinancings thereofto the extent included, with respect to the Borrower, Indebtedness for borrowed money (including Contingent Liabilities relating to borrowed money); 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;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 BGI’s domestic subsidiaries of BV in connection with their operations, (iv) letters of credit obtained in the support of trading activities of Subsidiaries that are Guarantors of BV, (v) additional Indebtedness incurred by subsidiaries of BV not to exceed $10,000,000, including such Indebtedness outstanding on the Closing Date;
100,000,000 and (fvi) 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 unsecured interest rate hedging obligations of the covenants in §§9 and 10 hereof as if the transaction occurred on the first day of the period of measurement;
(g) Borrower with respect to 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 Subsidiaries 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, 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 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsectionBorrower.
Appears in 2 contracts
Sources: Credit Agreement (Edison Mission Energy), Credit Agreement (Edison Mission Energy)
Restrictions on Indebtedness. None of the Borrowers willThe 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:
(a) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan Documents;
(b) current liabilities of the Borrower or such Subsidiary incurred in the ordinary course of business not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(c) 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 §6.8 hereof;
(d) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the Borrower or such Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review;
(e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(cf) Indebtedness in respect of any Derivative Contracts documentary letters of credit issued 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 Borrower in respect 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 outstandinginterest rate protection arrangements and exchange rate protection arrangements;
(h) Indebtedness of existing on the Borrowers Closing Date and listed and described on Schedule 7.1 hereto or any Subsidiary that is a Guarantor in respect of refinancing thereof on substantially similar terms as the Indebtedness being refinanced;
(i) 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 acquisitionobligations 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 Borrowers Borrower’s Subsidiaries’ obligations, or (iii) from any Subsidiary of the Borrower to the Borrower or of any of their Subsidiaries which are Guarantors the Borrower’s obligations;
(l) Indebtedness incurred in connection with the issuance acquisition after the Closing Date of any surety bonds, Performance Letters of Credit real or other similar performance bonds required pursuant to personal property by the Borrower or any contractual Obligation or requirement of law to which any Subsidiary 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;
(lBorrower as contemplated by §7.2(ix) 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 outstandinghereof;
(m) Indebtedness of Subsidiaries secured by a lien on Real Estate of the Borrowers which are Guarantors owing Borrower or its Subsidiaries; provided that the aggregate amount of Indebtedness permitted pursuant to this §7.1(m) shall not, at any other Subsidiaries time, exceed the fair market value of the Borrowers which are Guarantors or to the Borrowers which results from an Investment permitted under §9.3(g) or (i)Real Estate securing such Indebtedness;
(n) other Indebtedness of BGI the Borrower and its domestic Subsidiaries which (whether or not such Subsidiaries are Guarantors 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 with Sale Leaseback Transactionsthis Credit Agreement and (ii) immediately after such incurrence of Indebtedness, in an aggregate principal amount not to exceed $25,000,000 at any time outstandingand after giving effect thereto on a pro forma basis, no Default or Event of Default shall then exist;
(o) Indebtedness consisting of BGI and its domestic Subsidiaries which are Guarantors incurred in connection with accounts receivable securitizations on customary terms or 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 Investments permitted under §§9 and 10 hereof as if the transaction occurred on the first day of the period of measurement7.3(m) hereof;
(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 payable at 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 election of the covenants in §§9 and 10 hereof as if Borrower by the transaction occurred on the first day issuance of the period of measurementBorrower’s capital stock; and
(q) unsecured Indebtedness of BGI the Borrower and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, in respect of convertible notesreceivables securitization transactions or other financing of any special purpose receivables Subsidiary of the Borrower, with a maturity date later than entered into or guaranteed by the Maturity DateBorrower and/or any of its Subsidiaries; provided that that, the Borrowers are in current compliance with and, after giving effect to the proposed incurrence aggregate amount 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 measurementsuch Indebtedness shall not exceed $300,000,000 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 (excluding (i) Indebtedness permitted pursuant to §7.1 to the extent such Indebtedness (or if such Indebtedness is a Contingent Liability of the Borrowers (under paragraphs (jBorrower and/or its Subsidiaries, the underlying Indebtedness relating to such Contingent Liability) or (l)) secured by Liens plus is included in the calculation of Consolidated Total Funded Debt and (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of documentary letters of credit) exceed, in the aggregate, 15% of the Stockholders’ Equity of the Borrower at such Indebtednesstime. For purposes of this Section, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred Contingent Liabilities in respect of interest rate protection arrangements and exchange rate protection arrangements permitted under §7.1(g) at any time shall be the net liability of the Borrower and its Subsidiaries under such subsectionarrangements 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. None of the Borrowers will, and No Subsidiary Property Owner 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:
(a) Indebtedness to the Lenders and the Administrative Agent Banks arising under any of the Loan Documents;
(b) current liabilities of such Subsidiary Property Owner incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(c) 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;
(d) Indebtedness in respect of judgments or awards the existence of which does not create an Event of Default;
(e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(cf) Indebtedness in respect the Subsidiary Subordinate Debt, which, prior to the making by Borrower of any Derivative Contracts in the ordinary course of business;
(d) Existing Senior such loan to Aquia that would constitute Subsidiary Subordinate Debt, (i) is subordinated to the repayment of the Obligations pursuant to a Subsidiary Subordination and refundingsStandstill Agreement in form and substance satisfactory to Agent, replacements and (ii) Borrower has delivered to Agent any note or refinancings thereof; provided that no such refunding other document or refinancing shall shorten the maturity instrument which evidences, constitutes, guarantees or weighted average life to maturity or increase the principal amount of secures any of the Existing Senior Debt;
(e) Indebtedness of BGI’s domestic Subsidiaries that are Guarantors not Subsidiary Subordinate Debt or any right 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 receive payments relating to the proposed incurrence of IndebtednessSubsidiary Subordinate Debt, will continue which notes and other instruments shall be accompanied by such endorsement and assignment as Agent may reasonably require 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 measurementtransfer title to Agent;
(g) Indebtedness in respect of the Borrowers or any Subsidiary that is reverse repurchase agreements having a Guarantor that constitutes a Synthetic Lease or Capitalized Lease or otherwise incurred term of not more than 180 days with respect to finance the acquisition of fixed or capital assets (other than pursuant to Sale Leaseback Transactions referred to Investments described in §9.1(n8.3(d) or (e), whether pursuant to a loan, financing lease or otherwise) in an aggregate principal amount not to exceed $30,000,000 at any time outstanding;; and
(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 purchase money financing for equipment, computers and reasonably acceptable to the Administrative Agent prior to the incurrence thereof;
(j) Indebtedness of a Person outstanding at the time it is first vehicles 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 Subsidiaries 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, 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 supply chain financing in the ordinary course of such Subsidiary Property Owner’s business which is nonrecourse to the Borrowers in an aggregate amount not to exceed exceeding $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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection250,000.00.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Ramco Gershenson Properties Trust), Revolving Credit Agreement (Ramco Gershenson Properties Trust)
Restrictions on Indebtedness. None of the 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:
(a) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan Documents;
(b) current liabilities of the Borrowers incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(c) 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;
(d) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) 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 the Parent Borrower 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 connection with and, after giving effect to the proposed incurrence of Indebtedness, will continue to be in compliance with all of the covenants in §§9 completion 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) similar guaranties 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 not in excess of the Borrowers which are Guarantors owing to any other Subsidiaries 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, 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 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount greater of (i) Indebtedness of the Borrowers (under paragraphs (j) $175,000,000 or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (f), (j), (l) or (o)) shall not exceed fifteen percent (15%) of Consolidated Total Assets the Gross Asset Value;
(g) Other Indebtedness of the BorrowersParent Borrower, determined as the REIT or any of their Subsidiaries (other than any Subsidiary Borrower), provided that none of such Persons shall incur any of the end Indebtedness described in this §8.1(g) unless it shall have provided to the Agent prior written notice 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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect proposed incurrence of such Indebtedness, a statement that the BGI Guaranty borrowing will not cause a Default or Event of Default and a Compliance Certificate demonstrating that the Borrowers will be in compliance with its covenants referred to therein after giving effect to the 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 §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 (provided that the foregoing shall not increase preclude Subsidiaries of the amount Borrowers (other than a Subsidiary Borrower) from incurring Indebtedness subject to the terms of this §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 deemed incurred under such subsection(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. None of the Borrowers willThe Borrower will not, and the Borrower will not permit any of its Subsidiaries to, 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:
(a) Indebtedness to arising under the Lenders and the Administrative Agent arising Secured Revolving Credit Agreement or under any of the Loan Documents;
(b) current liabilities of the Borrower incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(c) 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;
(d) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the Borrower shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review;
(e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) 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 Borrower or 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 Related Companies to the proposed incurrence extent the same does not create a violation of Indebtedness§9.3, will continue §9.4 or §9.5 and is subject to be in compliance terms and conditions consistent 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)conventional commercial real estate lending practices, provided that upon the creation or assumption of any such Indebtedness was not created at in an amount exceeding $5,000,000 Borrower shall provide the time of or in contemplation or in anticipation Agent with a notice describing the terms of such acquisition;
(k) Indebtedness of any of and the Borrowers or any of their Subsidiaries which are Guarantors incurred in connection security therefor and a Compliance Certificate 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 Subsidiaries 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, 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 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of updated calculations reflecting such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection.
Appears in 2 contracts
Sources: Unsecured Revolving Credit Agreement (Amerivest Properties Inc), Unsecured Revolving Credit Agreement (Amerivest Properties Inc)
Restrictions on Indebtedness. None of the Borrowers will, and will (a) The Borrower shall not permit any of its Subsidiaries to, 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:
(a) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan Documents;except for Permitted Indebtedness.
(b) endorsements for collectionFor purposes of determining compliance with this Section 5.4, deposit 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 negotiation and warranties divide such item of products Indebtedness on the date of its incurrence, or serviceslater reclassify or redivide all or a portion of such item of Indebtedness, in each case incurred in the ordinary course of business;any manner.
(c) The accrual of interest, the accretion or amortization of original issue discount, and the payment of interest on any Indebtedness in respect 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 Derivative Contracts such accrual, accretion or payment is included in the ordinary course of business;Debt Service as accrued.
(d) Existing Senior DebtNotwithstanding anything to the contrary herein, the maximum amount of Indebtedness that the Borrower may incur hereunder shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values.
(e) The amount of any Indebtedness outstanding as of any date which is issued with original issue discount will be the accreted value of such Indebtedness.
(f) The amount of any Indebtedness outstanding as of any date (including any classification or division of Indebtedness for purposes of Section 5.4(b)) shall include (i) the aggregate amount of Indebtedness that any outstanding preferred stock may be converted into, whether or not the conditions to such conversion have theretofore occurred, (ii) in respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the least of (A) the Fair Market Value of such asset on the date of determination and refundings, replacements or refinancings thereof(B) the amount of the Indebtedness of the other Person; provided that no such refunding or refinancing shall shorten the maturity or weighted average life to maturity or increase and (iii) the principal amount of any of the Existing Senior Debt;
(e) Indebtedness of BGI’s domestic Subsidiaries that are Guarantors not to exceed $10,000,000Indebtedness, 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 case 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 Subsidiaries 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, 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 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection.
Appears in 2 contracts
Sources: Common Terms Agreement (NextDecade Corp.), Common Terms Agreement (NextDecade Corp.)
Restrictions on Indebtedness. None of the Borrowers willThe 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:
(a) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan Documents;
(b) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) 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 BGIthe Borrower’s domestic Subsidiaries that are Guarantors not to exceed $10,000,000, including such Indebtedness outstanding on the Closing Date;
(f) Indebtedness of BGIthe Borrower’s foreign Subsidiaries not to exceed in the aggregate for all such foreign Subsidiaries Subsidiaries, ten percent (10%) of Consolidated Total Assets and $100,000,00050,000,000 in the aggregate for any foreign Subsidiary, including such Indebtedness outstanding on the Closing Date but excluding Indebtedness under the Loan DocumentsDate; provided that Indebtedness of foreign Subsidiaries of the Borrowers Borrower that are in current compliance with and, after giving effect party to the proposed incurrence of Indebtedness, will continue to be in compliance with Intercreditor Agreement and all of whose lenders are party to the covenants Intercreditor Agreement shall not be included in §§9 and 10 hereof as if the transaction occurred on the first day of the period of measurementthis calculation;
(g) Indebtedness of the Borrowers Borrower 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(n8.1(m), 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 Borrower or any Subsidiary that is a Guarantor in respect of Subordinated Debt;
(i) Indebtedness of the Borrowers Borrower owing to any Subsidiary of such the 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 Borrower in an acquisition permitted pursuant to §9.5.1(g8.5.1(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 Borrower or any of their its 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 obligation or requirement of law to which any of the Borrowers Borrower or any of their its 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 Borrower not exceeding $35,000,000 less any Indebtedness incurred under this Credit Agreement (excluding Indebtedness incurred under this Credit Agreement and used to refund, replace or refinance Existing Senior Notes as permitted under paragraph (d)) or under paragraph (g), in an aggregate principal amount at any one time outstanding;
(m) Indebtedness of Subsidiaries of the Borrowers which are Guarantors Borrower owing to any other Subsidiaries of the Borrowers which are Guarantors Borrower or to the Borrowers Borrower which results from an Investment permitted under §9.3(g8.3(g) or (i);; and
(n) Indebtedness of BGI the Borrower and its domestic Subsidiaries which are Guarantors incurred in connection with Sale Leaseback Transactions, 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 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers Borrower (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Borrower’s Subsidiaries (under paragraphs (e), (f), (j), (l) or (o)j) shall not exceed fifteen percent (15%) of Consolidated Total Assets of the BorrowersBorrower, 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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsectionBorrower.
Appears in 1 contract
Sources: Senior Unsecured Credit Agreement (Barnes Group Inc)
Restrictions on Indebtedness. None of the Borrowers willThe 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:
(a) Indebtedness to the Lenders Banks and the Administrative Agent Agents arising under any of the Loan Documents;
(b) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) Indebtedness incurred in respect connection with the acquisition after the date hereof of any Derivative Contracts real or personal property by the Borrower or such Subsidiary or under any Capitalized Lease, provided that (i) the aggregate amount of such Indebtedness does not exceed seventy percent (70%) of the fair market value (determined in good faith by the ordinary course Borrower) of businessthe property so acquired (except that, with respect to not more than $15,000,000 of Indebtedness permitted pursuant to this clause (c), such Indebtedness may be in an amount up to one hundred percent (100%) of the fair market value (determined in good faith by the Borrower) of the property so acquired), (ii) the aggregate principal amount of such Indebtedness of the Borrower and its Subsidiaries shall not exceed the aggregate amount of $100,000,000 at any one time, and (iii) immediately after the incurrence of such Indebtedness, and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(d) Existing Senior Debt, Indebtedness existing on the date hereof 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 Debtlisted and described on Schedule 12.1 hereto;
(e) Indebtedness of BGI’s domestic Subsidiaries that are Guarantors not a Subsidiary of the Borrower owing to exceed $10,000,000, including such Indebtedness outstanding on the Closing DateBorrower or a Guarantor;
(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 respect 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) Senior Notes 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 Subsidiaries 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, 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 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 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 measurement350,000,000; and
(qg) additional unsecured Indebtedness of BGI the Borrower incurred after the Closing Date so long as no Default or Event of Default shall have occurred and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) continuing or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsectionwould result therefrom.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Hvide Marine Inc)
Restrictions on Indebtedness. None of the Borrowers willPFR 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:
(a) Indebtedness to the Lenders Banks and the Administrative Agent arising under any of the Loan Documents;
(b) endorsements for collection, deposit Unsecured current liabilities of the Borrower or negotiation and warranties of products or services, in each case such Subsidiary incurred in the ordinary course of businessbusiness 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 and its independent public accountants;
(c) Indebtedness in respect of any Derivative Contracts 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 ordinary course provisions of businessss.10.8;
(d) Existing Senior Debt, Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the Borrower or such Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and refundings, replacements in respect of which a stay of execution shall have been obtained pending such appeal 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 Debtreview;
(e) Other unsecured Indebtedness of BGI’s domestic Subsidiaries that are Guarantors the Borrower not to exceed $10,000,000, including 7,500,000 in aggregate principal amount for all such Indebtedness outstanding on the Closing DateOutstanding at any time;
(f) Indebtedness of BGI’s foreign the Borrower and its Subsidiaries not to exceed in respect of rental obligations (net of subleases) under leases (other than Capitalized Leases) incurred in the aggregate for all such foreign Subsidiaries $100,000,000ordinary course of business, 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 aggregate amount of Indebtedness, will continue such obligations required to be paid 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 measurementany fiscal year shall not exceed $10,000,000;
(g) Indebtedness of the Borrowers or any Subsidiary Borrower in respect of Capitalized Leases (net of subleases), provided that is a Guarantor that constitutes a Synthetic Lease or the aggregate Outstanding amount of all future principal payments owing under (i) existing Capitalized Lease or otherwise incurred to finance the acquisition of fixed or capital assets (other than pursuant to Sale Leaseback Transactions Leases referred to in §9.1(n)the Borrower's audited balance sheet as of December 31, whether 1996, and (ii) additional Capitalized Leases entered into pursuant to a loan, financing lease or otherwisethis subsection (g) after the date hereof (as reflected in an aggregate principal amount the notes to the Borrower's audited financial 56 -49- statements in accordance with generally accepted accounting principles) shall not to exceed $30,000,000 at any time outstandingexceed $15,000,000;
(h) Indebtedness of existing on the Borrowers or any Subsidiary that is a Guarantor in respect of Subordinated Debt;Closing Date and listed and described on Schedule 11.1 hereto; and
(i) Indebtedness from and after the merger of PFR and The Restaurant Company, contingent liabilities arising from the Borrowers owing to any Subsidiary of such Borrower indemnity contained in that is a Guarantor which is expressly subordinated to the prior payment in full in cash of all Obligations on terms disclosed to certain tax disaffiliation agreement between The Restaurant Company 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 Friendly Ice Cream Corporation 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 Subsidiaries 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, 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 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness $21,500,000 as of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus Closing Date and (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (f), (j), (l) or (o)) shall not exceed fifteen percent (15%) of Consolidated Total Assets of the Borrowers, determined $12,500,000 as of the end of the then most recently completed fiscal year of the Borrowers. For the avoidance of doubtSeptember 16, the parties acknowledge 1997 and agree that if Indebtedness permitted in any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsectionthereafter.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Perkins Family Restaurants Lp)
Restrictions on Indebtedness. None of the Borrowers will, and The Borrower will not nor will it 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:
(a) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan Documents;
(b) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) Indebtedness in respect of any Derivative Contracts in the ordinary course of businessSubordinated Debt;
(d) Existing Senior DebtIndebtedness incurred in connection with the acquisition after the date hereof of any real or personal property by the Borrower or such Subsidiary or under any Capitalized Lease, provided that the aggregate principal amount of such Indebtedness of the Borrower and refundingsits Subsidiaries shall not exceed the aggregate amount of $2,500,000 at any one time, replacements or refinancings thereof; provided that no Default or Event of Default shall exist (i) prior to the incurrence of such refunding Indebtedness, or refinancing shall shorten the maturity or weighted average life to maturity or increase the principal amount of any (ii) as a result of the Existing Senior Debtincurrence of such Indebtedness;
(e) Indebtedness in respect of BGI’s domestic Interest Rate Agreements entered into in order to hedge interest rate fluctuations on Indebtedness for borrowed money of the Borrower or its Subsidiaries that are Guarantors and not to exceed $10,000,000, including such Indebtedness outstanding on the Closing Datefor speculative purposes;
(f) Indebtedness consisting of BGI’s foreign Subsidiaries not contingent obligations of the Borrower to exceed repurchase or otherwise redeem capital stock of the Borrower from former employees of the Borrower pursuant to the terms of employee stock ownership, employee stock option or other employee compensation plans of the Borrower and matured obligations to repurchase or otherwise redeem such stock, in the aggregate for all case of each such foreign Subsidiaries $100,000,000repurchase or redemption, 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 measurementextent such repurchase or redemption is permitted under Section 10.4(d);
(g) other 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;outstanding not exceeding $1,000,000; provided, that no Event of Default shall exist (i) prior to the incurrence of such Indebtedness or (ii) as a result of the incurrence of such Indebtedness; and
(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 Subsidiaries 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, 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 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 existing on the first day of the period of measurement;
(p) unsecured Indebtedness of BGI date hereof 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 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 listed and 10 hereof as if the transaction occurred described 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, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsectionSchedule 10.1 hereto.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Il Fornaio America Corp)
Restrictions on Indebtedness. 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:
(a) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan Documents;
(b) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) Indebtedness in respect of any Derivative Contracts interest rate contracts and foreign currency contracts undertaken 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 Subsidiaries, ten percent (10%) of Consolidated Total Assets and $100,000,00050,000,000 in the aggregate for any foreign Subsidiary, including such Indebtedness outstanding on the Closing Date but excluding Indebtedness under the Loan DocumentsDate; provided that the Borrowers Indebtedness of foreign Subsidiaries all of whose lenders are in current compliance with and, after giving effect party to the proposed incurrence of Indebtedness, will continue to Intercreditor Agreement shall not be included 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 measurementthis calculation;
(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 Subsidiaries of the Borrowers which are Guarantors or to the Borrowers which results from an Investment permitted under §9.3(g) or (i);; and
(n) Indebtedness of BGI and its domestic Subsidiaries which are Guarantors incurred in connection with Sale Leaseback Transactions, 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 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (f), (j), (l) or (ol)) 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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection.
Appears in 1 contract
Sources: Senior Unsecured Revolving Credit Agreement (Barnes Group Inc)
Restrictions on Indebtedness. None of the Borrowers will, and will not permit any of its Subsidiaries to, No Borrower shall create, incur, assume, guarantee assume or be or remain liable, contingently or otherwise, with respect suffer to exist any Indebtedness other than:
(a) Indebtedness to existing on the Lenders Closing Date and set forth on Schedule 7.01, including any renewals, extensions, refinancings and replacements thereof so long as the principal amount thereof (plus all accrued interest on such Indebtedness and the Administrative Agent arising under 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 of the Loan Documentsrefinancing) is not increased;
(b) endorsements incurrence of guaranty, suretyship or indemnification obligations in connection with the Borrowers’ performance of services for collection, deposit or negotiation and warranties of products or services, in each case incurred their respective customers in the ordinary course of businesstheir businesses;
(c) Indebtedness in respect of any Derivative Contracts in the ordinary course of businessone Borrower to another Borrower;
(d) Existing Senior Debt, and refundings, replacements Indebtedness of the Borrowers incurred in connection with the acquisition 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 lease of any of equipment or other property by the Existing Senior DebtBorrowers under any Synthetic Lease, Capital Lease or other lease arrangement or purchase money financing;
(e) Indebtedness of BGI’s domestic Subsidiaries that are Guarantors not the Borrowers with respect to exceed $10,000,000, including such Indebtedness outstanding on bonds for closure and post-closure obligations relating to any landfill owned or operated by the Closing DateBorrowers;
(f) Indebtedness of BGI’s foreign Subsidiaries not to exceed the Borrowers in respect of Swap Contracts (including Fuel Derivatives Obligations) entered into in the aggregate ordinary course of business and not 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 measurementspeculative purposes;
(g) Indebtedness of the Borrowers with respect to letters of credit of Persons acquired by the Borrowers; provided, that such letters of credit shall be retired immediately or replaced by Letters of Credit under this Agreement as soon as possible but in any Subsidiary that is a Guarantor that constitutes a Synthetic Lease or Capitalized Lease or otherwise incurred to finance event not later than one hundred twenty (120) days after the acquisition closing 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 outstandingsuch acquisition;
(h) Indebtedness of the Borrowers or any Subsidiary that is a Guarantor in respect of Subordinated DebtIRBs; provided, that (i) such Indebtedness may be secured only to the extent such IRBs are L/C Supported IRBs and (ii) after taking into account all Indebtedness incurred pursuant to this clause (h), the Borrowers on a consolidated basis shall be in pro forma compliance with each of the financial covenants set forth in Section 7.14 (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 previously approved in 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));
(i) other secured 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 other than as permitted pursuant to §9.5.1(gunder other subsections hereof), provided that any such Indebtedness was not created at in excess of $20,000,000 in 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;
(lj) additional Indebtedness other unsecured Indebtedness; provided, that, at the time of incurrence thereof, the Borrowers shall be in pro forma compliance with each of the Borrowers not exceeding $35,000,000 less any Indebtedness incurred under paragraph financial covenants set forth in Section 7.14 (g), in aggregate principal amount at any one time outstanding;
(m) Indebtedness of Subsidiaries using Consolidated EBITDA of the Borrowers which are Guarantors owing to any other Subsidiaries Consolidated Group as of the Borrowers which are Guarantors or last day of the applicable Pro Forma Reference Period (but including any addbacks 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, 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 supply chain financing Consolidated EBITDA previously approved in the ordinary course period following the last day of business which is nonrecourse to the Borrowers in an aggregate amount not to exceed $75,000,000; provided that applicable Pro Forma Reference Period) and Consolidated Total Funded Debt as of the Borrowers are in current compliance with anddate of, and after giving effect to the proposed incurrence of Indebtednessto, will continue to be in compliance such Indebtedness (with all of the covenants in §§9 and 10 hereof such amounts adjusted as if the transaction occurred such Indebtedness was incurred 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 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 measurementapplicable Pro Forma Reference Period)); and
(qk) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsectionObligations.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Waste Connections, Inc.)
Restrictions on Indebtedness. None of the Borrowers will, and will not permit any of its Subsidiaries to, createCreate, incur, assumesuffer or permit to exist, guarantee or be assume or guarantee, either directly or indirectly, or otherwise become or remain liable, contingently or otherwise, liable with respect to to, any Indebtedness other thanIndebtedness, except the following:
(a) Indebtedness to outstanding at the Lenders and the Administrative Agent arising under any date of the Loan Documents;
(b) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) Indebtedness in respect of any Derivative Contracts in the ordinary course of business;
(d) Existing Senior Debt, and refundings, replacements this Agreement as set forth on Schedule 5.28 but no amendments 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) all Indebtedness of BGI’s domestic Subsidiaries that are Guarantors not to exceed $10,000,000, including such Indebtedness outstanding set forth 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 Schedule 5.28 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 seller in connection with the issuance acquisition by the Company or any Subsidiary of any surety bondsbusiness (whether by asset purchase, Performance Letters of Credit stock purchase 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;otherwise) shall be Subordinated Debt, except as specifically indicated otherwise on Schedule 5.28.
(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;
(mb) Indebtedness of Subsidiaries of the Borrowers which are Guarantors owing to any other Subsidiaries of the Borrowers which are Guarantors or to the Borrowers which results from an Investment permitted under §9.3(gUnited States Department of Housing and Urban Development ("HUD") or (i);
(n) Indebtedness of BGI and its domestic Subsidiaries which are Guarantors incurred in connection with Sale Leaseback Transactions, in an aggregate principal amount not to exceed $25,000,000 at any time outstanding;
(o) the refinancing of a portion of the Indebtedness of BGI and its domestic Subsidiaries which are Guarantors incurred in connection with accounts receivable securitizations on customary terms or supply chain financing in under the ordinary course of business which is nonrecourse to the Borrowers Credit Agreement in an aggregate amount not to exceed $75,000,00035,000,000 (including, for purposes of this cap, any Indebtedness to HUD set forth on Schedule 5.28), but no amendments or refinancings thereof.
(c) Indebtedness owing by any wholly-owned Subsidiary to the Company or to another wholly-owned Subsidiary; provided provided, that such Indebtedness shall be evidenced by a note and shall be Subordinated Debt.
(d) Borrowings incurred in the Borrowers are ordinary course of business and not exceeding $100,000 individually or in the aggregate outstanding at any one time; provided, however, that such Indebtedness shall be Subordinated Debt.
(e) Indebtedness in an amount not to exceed $100,000 in respect of purchase money security interests permitted under Section 10.2(c), including, for purposes of this cap, any Indebtedness in respect of purchase money security interests set forth on Schedule 5.28.
(f) Indebtedness to the Purchaser incurred in connection with a Drawdown Acquisition as set forth in paragraph (iii) of the definition of "Drawdown Acquisition."
(g) Indebtedness to the Purchaser.
(h) Capitalized Lease Obligations of the Company in an amount not to exceed $100,000 including, for purposes of this cap, any Capitalized Lease Obligations set forth on Schedule 5.28.
(i) Indebtedness under the Credit Agreement (including letters of credit issued under the Credit Agreement) in an aggregate principal amount outstanding not in excess of the current compliance with andmaximum commitment under the Credit Agreement and any additional advances or increases thereunder, so long as, after giving effect to such advances or increases, the proposed incurrence of IndebtednessCompany does not exceed the Total Leverage Ratio; provided, will continue to be in compliance with all however, that the Company agrees that it shall not permit any amendment, supplement, modification or waiver or refinancing of the covenants Credit Agreement, except as provided in §§9 and 10 hereof as if the transaction occurred on the first day Subordination Agreement.
(j) Indebtedness in connection with advances made by a stockholder in order to cure any default of the period of measurement;financial covenants set forth in Article VIII; provided, however, that such Indebtedness shall be Subordinated Debt.
(pk) unsecured Indebtedness to any seller of BGI and its domestic Subsidiaries that are Guarantors in respect of earnout payments any business incurred in connection with the acquisition by the Company or any acquisition wholly-owned Subsidiary of such business (whether by asset purchase, stock purchase or otherwise), but no amendments or refinancings thereof; provided, that such Indebtedness shall be Subordinated Debt; provided, however, that no Indebtedness shall be permitted under §9.5; provided that this Section 10.1 unless at the Borrowers are in current compliance with andtime such Indebtedness is created, incurred, suffered or permitted to exist, or assumed or guaranteed, either directly or indirectly, 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, no Default or Event of Default shall have occurred and be continuing. Neither the BGI Guaranty Company nor any Subsidiary shall not increase make prepayments on any existing or future Indebtedness to any Person other than under the amount of Indebtedness deemed incurred under such subsectionCredit Agreement or to the Purchaser or to the extent specifically permitted by this Agreement.
Appears in 1 contract
Restrictions on Indebtedness. None of the Borrowers willThe 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:
(a) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan Documents;
(b) current liabilities of the Borrower or such Subsidiary incurred in the ordinary course of business not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(c) 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 §5.8 hereof;
(d) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the Borrower or such Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review;
(e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(cf) Indebtedness in respect of any Derivative Contracts documentary letters of credit issued 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 Borrower in respect 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 outstandinginterest rate protection arrangements and exchange rate protection arrangements;
(h) Indebtedness of existing on the Borrowers Effective Date and listed and described on Schedule 6.1 hereto or any Subsidiary that is a Guarantor in respect of refinancing thereof on substantially similar terms as the Indebtedness being refinanced;
(i) 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 acquisitionobligations 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 Borrowers Borrower’s Subsidiaries’ obligations, or (iii) from any Subsidiary of the Borrower to the Borrower or of any of their Subsidiaries which are Guarantors the Borrower’s obligations;
(l) Indebtedness incurred in connection with the issuance acquisition after the Effective Date of any surety bonds, Performance Letters of Credit real or other similar performance bonds required pursuant to personal property by the Borrower or any contractual Obligation or requirement of law to which any Subsidiary 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;
(lBorrower as contemplated by §6.2(ix) 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 outstandinghereof;
(m) Indebtedness of Subsidiaries secured by a lien on Real Estate of the Borrowers which are Guarantors owing Borrower or its Subsidiaries; provided that the aggregate amount of Indebtedness permitted pursuant to this §6.1(m) shall not, at any other Subsidiaries time, exceed the fair market value of the Borrowers which are Guarantors or to the Borrowers which results from an Investment permitted under §9.3(g) or (i)Real Estate securing such Indebtedness;
(n) other Indebtedness of BGI the Borrower and its domestic Subsidiaries which (whether or not such Subsidiaries are Guarantors 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 with Sale Leaseback Transactionsthis Credit Agreement and (ii) immediately after such incurrence of Indebtedness, in an aggregate principal amount not to exceed $25,000,000 at any time outstandingand after giving effect thereto on a pro forma basis, no Default or Event of Default shall then exist;
(o) Indebtedness consisting of BGI and its domestic Subsidiaries which are Guarantors incurred in connection with accounts receivable securitizations on customary terms or 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 Investments permitted under §§9 and 10 hereof as if the transaction occurred on the first day of the period of measurement6.3(m) hereof;
(p) unsecured Indebtedness payable at the election of the Borrower by the issuance of the Borrower’s Capital Stock;
(q) Indebtedness of BGI the Borrower and its domestic Subsidiaries that are Guarantors in respect of earnout payments incurred in connection with receivables securitization transactions or other financing of any acquisition permitted under §9.5special purpose receivables Subsidiary of the Borrower, entered into or guaranteed by the Borrower and/or any of its Subsidiaries; provided that the Borrowers are in current compliance with and, after giving effect to the proposed incurrence aggregate amount of Indebtedness, will continue to be in compliance with all such Indebtedness shall not exceed $300,000,000 outstanding at any time;
(r) Indebtedness of the covenants in §§9 Borrower and 10 hereof as if its Subsidiaries arising under the transaction occurred on the first day Revolving Credit Agreement and any of the period of measurement; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, in respect of convertible notes, with a maturity date later than the Maturity Dateother “Loan Documents” as such term is defined therein; provided that the Borrowers are in current compliance with and, after giving effect to the proposed incurrence aggregate amount of Indebtedness, will continue to be in compliance with all such Indebtedness shall not exceed $1,000,000,000 outstanding at any time;
(s) Indebtedness of the covenants in §§9 Borrower and 10 hereof as if its Subsidiaries arising under the transaction occurred on the first day Bridge Credit Agreement and any of the period other “Loan Documents” as such term is defined therein; provided that the aggregate amount of measurementall such Indebtedness shall not exceed $3,000,000,000 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 (excluding (i) Indebtedness permitted pursuant to §6.1 hereof to the extent such Indebtedness (or if such Indebtedness is a Contingent Liability of the Borrowers (under paragraphs (jBorrower and/or its Subsidiaries, the underlying Indebtedness relating to such Contingent Liability) or (l)) secured by Liens plus is included in the calculation of Consolidated Total Funded Debt and (ii) Indebtedness obligations in respect of documentary letters of credit) exceed, in the Borrowers’ Subsidiaries (under paragraphs (e)aggregate, (f), (j), (l) or (o)) shall not exceed fifteen percent (15%) of Consolidated Total Assets the Stockholders’ Equity of the Borrowers, determined as of the end of the then most recently completed fiscal year of the BorrowersBorrower at such time. For the avoidance purposes of doubtthis §6.1, the parties acknowledge and agree that if Indebtedness permitted in any subsection amount of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary Contingent Liabilities in respect of such Indebtedness, interest rate protection arrangements and exchange rate protection arrangements permitted under §6.1(g) hereof at any time shall be the BGI Guaranty shall not increase net liability of the amount of Indebtedness deemed incurred Borrower and its Subsidiaries under such subsectionarrangements 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. None of the Borrowers willThe 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:
(a) Indebtedness to the Lenders and the Administrative Agent Lender arising under any of the Loan Documents;
(b) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) Indebtedness incurred in respect connection with the acquisition after the date hereof of any Derivative Contracts in real or personal property by the ordinary course Borrower or any Subsidiary of businessthe Borrower or under any Capitalized Lease, 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) Existing Senior Debt, Indebtedness existing on the date of this Loan Agreement (including all commitments to make loans or credit extensions available to the Borrower by any Person but which remain undrawn by the Borrower on the date hereof) and refundings, replacements or any refinancings thereof; provided that no such refunding or refinancing shall shorten thereof (so long as the maturity or weighted average life to maturity or increase the principal aggregate amount of any of the Existing Senior Debtsuch Indebtedness is not increased) and listed and described on SCHEDULE 7.1 hereto;
(e) Existing Indebtedness of BGI’s domestic Subsidiaries that are Guarantors not Bridgestone assumed by the Borrower in connection with the Bridgestone Acquisition pursuant to exceed $10,000,000, including such Indebtedness outstanding on the Closing DateBridgestone Acquisition Documents;
(f) Indebtedness of BGI’s foreign Subsidiaries not to exceed in a Subsidiary of 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 Borrower 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;Borrower; and
(g) Indebtedness of the Borrowers deposits 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 pledges made in connection with the issuance of any surety bondswith, Performance Letters of Credit or to secure payment of, workmen's compensation, unemployment insurance, old age pensions 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 Subsidiaries 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, 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 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsectionsocial security obligations.
Appears in 1 contract
Sources: Loan Agreement (Applied Opsec Corp)
Restrictions on Indebtedness. None of Neither the Borrowers Borrower nor the Guarantor will, and or will not permit any of its Subsidiaries the other Transaction Parties to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders and the Administrative Agent arising under or any of the Banks under the Loan DocumentsDocuments or any Interest Rate Agreement;
(b) Indebtedness in respect of obligations of the Borrower or ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Merchandising under Capitalized Leases which does not exceed $2,500,000 in the aggregate outstanding at any time;
(c) liabilities (including all liabilities under leases other than Capitalized Leases) of the Borrower or any of its Subsidiaries incurred in the ordinary course of business not incurred through the borrowing of money, Capitalized Leases or the obtaining of credit (except credit on an open account customarily extended and in fact extended in connection with normal purchases of goods and services);
(d) Indebtedness owed by the Borrower or ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Merchandising to trade vendors, in the amount of the cost to the Borrower of inventory on consignment from such trade vendors not to exceed $1,500,000 at any time outstanding;
(e) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the applicable Transaction Party shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review;
(f) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(cg) Indebtedness in respect of any Derivative Contracts in the ordinary course of business;
(d) Existing Senior Debttaxes, assessments, governmental charges or levies and refundingsclaims for labor, 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 materials and supplies to the proposed incurrence of Indebtedness, will continue extent that payment therefor shall not at the time be required to be made in compliance accordance with all the provisions 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 outstandingSection 8.5;
(h) Indebtedness of the Borrowers or any Subsidiary that is a Guarantor in respect of Subordinated DebtBorrower to the Guarantor;
(i) Indebtedness obligations in respect of the Borrowers owing fees and related expenses payable to any Subsidiary of such Borrower that is a Guarantor which is expressly subordinated ▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇, ▇.▇. to the prior payment extent such fees and expenses are permitted by Section 9.11, and (ii) other obligations in full respect of fees and expenses payable in cash of all Obligations on terms disclosed connection with the Loan Documents, not to and reasonably acceptable to the Administrative Agent prior to the incurrence thereofexceed $500,000 in aggregate amount;
(j) Indebtedness owing to the Borrower by (i) the Guarantor in respect of a Person outstanding at obligations evidencing advances made by the Borrower from time it is first acquired to time equal to expenses incurred in the ordinary course of business by the Guarantor and payable by the Guarantor within thirty (30) days of receipt of such advance from the Borrower and (ii) of any Subsidiary of the Borrowers in an acquisition permitted pursuant Borrower party 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 acquisitionGuaranty;
(k) Indebtedness consisting of any liabilities resulting from the marking up 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 Borrower's existing leases 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 outstandingreflect market rents;
(l) additional existing 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;included above and listed on SCHEDULE 9.1 hereto; and
(m) other Indebtedness not included in the foregoing provisions of Subsidiaries of the Borrowers which are Guarantors owing to any other Subsidiaries 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, in an aggregate principal amount this Section 9.1 not to exceed $25,000,000 750,000 in the aggregate 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 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection.
Appears in 1 contract
Sources: Revolving Credit Agreement (Charlotte Russe Holding Inc)
Restrictions on Indebtedness. None The Parent and each of the Borrowers willwill not, and the Parent will not permit any of its other Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders Banks and the Administrative Agent arising under any of the Loan Documents;
(b) Indebtedness of the Borrowers or the Parent or their Subsidiaries in respect of current liabilities incurred in the ordinary course of business not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(c) 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 (S)8.8;
(d) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which such Person shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review;
(e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(cf) Indebtedness existing on the Closing Date of this Agreement and listed and described on Schedule 9.1 hereto and Indebtedness issued to refinance or replace such Indebtedness, provided that (i) the obligor on the Indebtedness so refinanced or replaced is the obligor on such refinancing or replacement Indebtedness, (ii) the aggregate amount of such refinancing or replacement Indebtedness plus the amount of Indebtedness listed on Schedule 9.1 which is still outstanding does not exceed the aggregate principal amount of the Indebtedness set forth on Schedule 9.1 hereto (such principal amount to include commitments under revolving credit facilities), (iii) such refinancing or replacement Indebtedness has a final maturity date no earlier than December 1, 2002, (iv) such Indebtedness is on terms and conditions (including, without limitation, terms relating to interest rate, covenants, defaults, mandatory prepayments and the ability of such Subsidiary to make dividends or loans to the Parent or the Borrowers) not materially more onerous to the Borrower or such Subsidiary than the Indebtedness set forth on Schedule 9.1 hereto, (v) if secured, such Indebtedness is not secured by liens on any assets of the Borrower or such Subsidiary which were not previously subject to liens securing the Indebtedness set forth on Schedule 9.1 hereto; and (vi) after giving effect to the incurrence of such refinancing or replacement Indebtedness no Default or Event of Default shall have occurred and be continuing and the Borrower shall be in respect compliance with the borrowing limitations set forth in (S)2.1;
(i) Indebtedness incurred after the date hereof in connection with the acquisition or construction (and within 120 days of such acquisition or construction) of any Derivative Contracts real or personal property by the Parent, the Borrowers or any other Subsidiary of the Parent and Indebtedness assumed in connection with any acquisition (whether of assets or stock) of a business by any of such Persons, including Indebtedness issued to refinance or replace such Indebtedness so long as such refinancing or replacement Indebtedness otherwise complies with the criteria set forth in (S)(S)9.1(f)(i), (ii), (iv), (v) and (vi) (without reference to Schedule 9.1 hereto) and (ii) Capitalized Leases; provided (A) that the aggregate principal amount of all such Indebtedness under this clause (g) shall not exceed $50,000,000 at any time and (B) after giving effect to the incurrence of any such Indebtedness no Default or Event of Default shall have occurred and be continuing and the Borrower shall be in compliance with the borrowing limitations set forth in (S)2.1;
(h) Indebtedness of a wholly-owned Subsidiary of the Parent or a Borrower owing to the Parent or such Borrower, provided that the Investment corresponding to such Indebtedness is permitted pursuant to (S)9.3(e);
(i) contingent obligations arising in connection with (i) surety, performance or other similar bonds obtained in the ordinary course of business, consistent with past practices, and (ii) standby letters of credit issued in lieu of such bonds;
(dj) 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 Indebtedness in respect 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 Notes 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) guaranties thereof 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 acquisition280,000,000;
(k) Indebtedness of any the Parent or either of the Borrowers or any of their Subsidiaries which are Guarantors incurred in connection with respect to 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 SWATH Vessel in an aggregate principal amount not to exceed $15,000,000 at any time outstanding10,000,000;
(l) additional unsecured subordinated Indebtedness of the Borrowers not exceeding $35,000,000 less any Indebtedness incurred under paragraph (g), in an aggregate principal amount at any one time outstandingand on terms and conditions (including, without limitation, with respect to tenor, interest rate, and terms of the subordination provisions relating thereto) acceptable to the Agent and the Majority Banks, in their sole discretion;
(m) additional unsecured Indebtedness of Subsidiaries of the Borrowers which are Guarantors owing to any other Subsidiaries 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, 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 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 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 measurement10,000,000; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (in) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Parent consisting of guaranties of Indebtedness of the Borrowers’ Saevik Supply or its Subsidiaries permitted pursuant to (under paragraphs S)9.1(f) and (eS)9.1(g), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection.
Appears in 1 contract
Sources: Revolving Credit Agreement (Trico Marine Services Inc)
Restrictions on Indebtedness. None of the Borrowers willThe Borrower will not, and will not permit any of its Subsidiaries the other Transaction Parties to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders Banks and the Administrative Agent arising under any of the Loan Documents;
(b) current liabilities of the Borrower or such other Transaction Parties incurred in the ordinary course of business not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(c) 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]8.8;
(d) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the Borrower or such other Transaction Party shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review;
(e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(cf) Indebtedness in respect of any Derivative Contracts in the ordinary course of business;
(d) Existing Senior Debtobligations under Capitalized Leases which, and refundingswhen combined with amounts outstanding under [Section]9.1(g), 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 do not to exceed $10,000,000, including such Indebtedness outstanding on the Closing Date;
(f) Indebtedness of BGI’s foreign Subsidiaries not to exceed 25,000,000 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 measurementamount at any time outstanding;
(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 in connection with the acquisition after the date hereof of fixed any real or capital assets (personal property by the Borrower or such other than pursuant to Sale Leaseback Transactions referred to in §9.1(n)Transaction Party, whether pursuant to a loan, financing lease or otherwise) in an PROVIDED that the aggregate principal amount of such Indebtedness of the Borrower and the other Transaction Parties shall, when combined with amounts outstanding under [Section]9.1(f) not to exceed the aggregate amount of $30,000,000 25,000,000 at any time outstandingone time;
(h) Indebtedness of the Borrowers or any Subsidiary that is a Guarantor in respect of Subordinated DebtBorrower and the other Transaction Parties existing on the date hereof and listed and described on SCHEDULE 9.1 hereto;
(i) Indebtedness of the Borrowers owing to any Subsidiary (i) a Guarantor, following its execution and delivery of such Borrower that is a Guarantor which is expressly subordinated its Guaranty to the prior payment in full in cash of all Obligations on terms disclosed to and reasonably acceptable Agent, to the Administrative Agent prior Borrower (including Indebtedness of Hadco Acquisition to the incurrence thereof;
(j) Indebtedness Borrower, the proceeds of a Person outstanding at which are to be used to purchase the time it is first acquired by any of the Borrowers in an acquisition permitted Securities pursuant to §9.5.1(gthe Tender Offer Documents), provided that any such Indebtedness was not created at the time of or in contemplation or in anticipation of such acquisition;
; (kii) 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 Subsidiaries of the Borrowers which are Guarantors or Hadco FSC 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 TransactionsBorrower, 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 supply chain financing in the ordinary course of business which is nonrecourse to the Borrowers in an aggregate amount not to exceed $75,000,0002,000,000; provided (iii) Zycon to the Borrower to the extent required by the Bank Bumiputra Loan Agreement, but not to exceed $5,000,000 in the aggregate; (iv) from and after the Closing Date, Zycon Corp. SDN BHD to the Borrower or Hadco Acquisition in an aggregate amount not to exceed $55,000,000, no more than $11,000,000 of which may be incurred in any one fiscal year of the Borrower; PROVIDED, HOWEVER, that if during any fiscal year the amount of such Indebtedness permitted for that fiscal year is not so utilized, such unutilized amount may be utilized in the next succeeding fiscal year; and (v) until the Guaranty Delivery Date, Zycon or Zycon Alternate Circuits, Inc. to the Borrower or Hadco Acquisition in an aggregate amount not to exceed $25,000,000;
(j) Indebtedness consisting of contingent obligations arising in connection with any Transaction Party's compliance with applicable Environmental Laws in an amount not to exceed in the aggregate, ten percent (10%) of Consolidated Net Worth;
(k) So long as no Default or Event of Default shall have occurred and be continuing or would occur following the incurrence of any thereof, unsecured Indebtedness of the Borrower or any of its Subsidiaries in an aggregate amount not to exceed $175,000,000, consisting of (i) up to $150,000,000 (but not to exceed, when combined with amounts of Indebtedness incurred pursuant to clause (ii) of this [Section]9.1(k), $175,000,000) which is expressly subordinated and made junior to the payment and performance in full of the Obligations on terms and conditions satisfactory to the Agent and the Majority Banks in their sole and absolute discretion, and evidenced as subordinate by a Subordination and Intercreditor Agreement or another written instrument containing subordination provisions in form and substance satisfactory to (in their sole and absolute discretion) and approved by the Agent and the Majority Banks in writing; and (ii) up to $100,000,000 (but not to exceed, when combined with amounts of Indebtedness incurred pursuant to clause (i) of this [Section]9.1(k), $175,000,000) of Indebtedness which may rank PARI PASSU with the Obligations; PROVIDED, HOWEVER, that the Borrowers terms of such Indebtedness 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 [Section]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 current compliance with andclause (i) of this [Section]9.1(k), after giving effect no principal or sinking fund payments are due prior to at least one hundred twenty (120) days following the proposed incurrence Revolving Credit Loan Maturity Date; (D) the rate of Indebtednessinterest and other fees applicable to such Indebtedness are, will continue to be in compliance with all the reasonable judgment of the Agent and the Majority Banks, a market rate for companies with the same or similar financial profile as the Borrower; (E) the covenants, including affirmative, negative and financial covenants, included therein are, in the reasonable judgment of the Agent and the Majority Banks, less restrictive than the covenants set forth in §§[Sections]8, 9 and 10 hereof as if the transaction occurred and do not contain a negative pledge on the first day assets of the period Borrower and the other Transaction Parties (but may, with respect to PARI PASSU Indebtedness described in clause (ii) of measurement;
this [Section]9.1(k), contain an "equal and ratable clause" with respect to any collateral obtained by the Agent and the Banks); (pF) unsecured Indebtedness the terms and conditions of BGI which may not be amended without the prior written consent of the Agent and its domestic Subsidiaries that are Guarantors in the Majority Banks; (G) default provisions with respect of earnout payments incurred in connection with any acquisition permitted under §9.5; provided that the Borrowers are in current compliance with and, after giving effect to which do not cross-default to the proposed Credit Agreement and the other Loan Documents, except that, with respect to PARI PASSU Indebtedness described in clause (ii) of this [Section]9.1(k), such default provisions may cross-default to a Default or Event of Default under [Section]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; and (H) such other terms and conditions as the Agent and the Majority Banks may reasonably require; PROVIDED, FURTHER, that prior to the incurrence of any such Indebtedness, will continue the Borrower shall provide to be the Agent PRO FORMA financial statements and compliance certificates in compliance with all the form of EXHIBIT C indicating that for the period from the date of the covenants in §§9 and 10 hereof as if incurrence of such Indebtedness until the transaction occurred on Revolving Credit Loan Maturity Date, no Default or Event of Default would result from the first day incurrence of the period of measurementsuch Indebtedness; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (il) Indebtedness of the Borrowers not otherwise set forth in clauses (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (f), (j), (l) or (o)) shall not exceed fifteen percent (15%a)-(k) of Consolidated Total Assets of this [Section]9.1 in an amount not to exceed $2,000,000 in 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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsectionaggregate.
Appears in 1 contract
Sources: Revolving Credit Agreement (Hadco Acquisition Corp)
Restrictions on Indebtedness. None of the The Borrowers willwill not, and will not permit any of its Subsidiaries the Guarantor to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(ai) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan DocumentsDocuments and Hedge Obligations to a Lender Hedge Provider;
(bii) current liabilities of the Borrowers incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(iii) 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) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(v) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(cvi) 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 Subsidiaries of the Borrowers which are Guarantors landowners, government or to the Borrowers which results from an Investment permitted under §9.3(g) quasi-government or (i);
(n) Indebtedness of BGI and its domestic Subsidiaries which are Guarantors incurred in connection with Sale Leaseback Transactions, 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 entity or supply chain financing similar entity 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 the construction or development of any acquisition permitted under §9.5; 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are GuarantorsReal Estate, including, without limitation, convertible notessubdivision 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 each case, on terms no more restrictive than this Credit Agreement, and, the ordinary course of business in respect connection with the development of convertible notes, with a maturity date later than the Maturity Date; provided that the Borrowers are Real Estate or construction of infrastructure in current compliance with and, after giving effect to the proposed incurrence of Indebtedness, will continue to be in compliance with all connection therewith;
(vii) Indebtedness of the covenants in §§9 Guarantor under carve-out guaranties and 10 hereof as if the transaction occurred environmental indemnifications on the first day mortgage or other property related loans;
(viii) Indebtedness of the period Guarantor and certain of measurement. Notwithstanding its Subsidiaries (but not any Subsidiaries that are Credit Parties) under the foregoing, the aggregate amount of Equity Line; and
(ix) The Guarantor will not incur any Indebtedness other than (i) Indebtedness under guaranties of the Borrowers (under paragraphs (j) Guarantor consisting of carve-out guaranties and environmental indemnifications on first mortgage or (l)) secured by Liens plus 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 of the Borrowers’ Subsidiaries Subsidiaries) in an aggregate amount at any one time not in excess of ten percent (under paragraphs 10%) of Total Asset Value; provided that such limit in this subclause (e), (f), (j), (l) or (o)iii) shall not exceed increase to fifteen percent (15%) of Consolidated Total Assets 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 Borrowers, determined as Indebtedness described in §8.1 above shall have any of the end Collateral Properties or any interest therein or any direct ownership interest in any Subsidiary Credit Party as collateral, a borrowing base, asset pool or any similar form of credit support for such Indebtedness (provided that the foregoing shall not preclude Subsidiaries of the then most recently completed fiscal year of Guarantor (other than a Borrower) to incur Indebtedness which would be prohibited by the Borrowers. For the avoidance of doubt, the parties acknowledge and agree that if Indebtedness permitted in any subsection terms of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection§8.1).
Appears in 1 contract
Sources: Credit Agreement (Bluerock Residential Growth REIT, Inc.)
Restrictions on Indebtedness. None of the Borrowers willBorrower will not, and nor will not it permit any Subsidiary of its Subsidiaries Borrower to, createissue, 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:
(a) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan DocumentsObligations;
(b) endorsements for collectionNon-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, deposit 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 negotiation 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 on Schedule 7.15(b) hereto, and warranties (B) (i) of products BHP, (ii) evidencing the deferred purchase price of newly acquired property or services, in each case incurred to finance the acquisition of personal property of the Borrower or a Subsidiary of the Borrower used in the ordinary course of business;
business of the Borrower or Subsidiary, (ciii) Indebtedness constituting Capitalized Lease Obligations or with respect to synthetic (or similar type) lease arrangements, or (iv) incurred in respect connection with the performance of any Derivative Contracts tenders, statutory obligations, bids, leases or other similar obligations (other than for borrowed money) entered into in the ordinary course of businessbusiness 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 excess of $25,000,000 and any modification to such Indebtedness;
(d) Existing Senior Debtso long as the Borrower would be in compliance with Section 7.17 hereof (calculated as of the date of, and refundingsafter giving affect to, replacements 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 refinancings thereof; pari passu to the Obligations or is equally and ratably secured with the Obligations, provided that no such refunding or refinancing Borrower shall shorten promptly provide the maturity or weighted average life to maturity or increase the principal amount Administrative Agent with a copy of any documentation evidencing such Indebtedness in excess of the Existing Senior Debt$25,000,000 and any modification to such Indebtedness;
(e) Indebtedness 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 BGI’s domestic 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 that are Guarantors does not to exceed the difference between (I) $10,000,000, including 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 Indebtedness outstanding on limit is exceeded solely as a result of an increase in the Closing Datevalue 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 BGI’s foreign 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 $100,000,000 (it being understood that to exceed the extent such limit is exceeded solely as a result of an increase in the aggregate for all value of any 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 Investment attributable to the proposed incurrence of Indebtedness, will continue to be in compliance with all undistributed net earnings of the covenants in §§9 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 10 hereof as if the transaction occurred on the first day of the period of measurementany modification to such Guarantee;
(g) Indebtedness of the Borrowers or any Marketing Subsidiaries under Marketing 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 Excluded 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 Subsidiaries 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, 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 supply chain financing in the ordinary course of business which is nonrecourse to the Borrowers Facilities 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 measurementMarketing Subsidiary Indebtedness Limit;
(ph) 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 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 measurementPermitted Derivative Obligations; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness pursuant to Long-Term Guaranties (other than Long-Term Guaranties of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (Marketing Subsidiaries). Indebtedness shall only be permitted under paragraphs (e), (f), (jh), and (li) or (o)) shall not exceed fifteen percent (15%) above to the extent such Indebtedness will have a priority of Consolidated Total Assets of payment with 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 any subsection of this Section 9.1 Obligations which is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsectionno greater than pari passu.
Appears in 1 contract
Restrictions on Indebtedness. None The Borrower will not, nor will it permit any Subsidiary of the Borrowers will, and will not permit any of its Subsidiaries Borrower to, createissue, 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:
(a) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan DocumentsObligations;
(b) endorsements for collection, deposit or negotiation and warranties Non-Recourse Indebtedness of products or services, in each case incurred in the ordinary course of businessany Project Finance Subsidiary;
(c) Indebtedness in respect of any Derivative Contracts in so long as 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 Borrower would be in compliance with all Section 7.17 hereof (calculated as of the covenants in §§9 date of, and 10 hereof as if after giving effect to, the transaction occurred on the first day incurrence of the period of measurement;
such Indebtedness), secured Indebtedness (g) excluding Indebtedness of the Borrowers type described in (e) below but including the pledge of stock or similar equity interest of any Project Finance Subsidiary or any Subsidiary that which is a Guarantor that constitutes a Synthetic Lease an entity whose sole purpose and extent of business activities is to own the stock or Capitalized Lease similar equity interest of such Project Finance Subsidiary): (A) set forth on Schedule 7.15(c) hereto, (B)(i) of BHP or otherwise CLF&P, (ii) evidencing the deferred purchase price of newly acquired property or 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 personal property of the Borrowers Borrower or any a 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 Subsidiaries 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, 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 supply chain financing 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 performance of tenders, statutory obligations, bids, leases or other similar obligations (other than for 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 nonrecourse 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 Borrowers Termination Date, as extended from time to time in accordance with the terms hereof, and is not in excess of an aggregate amount not equal to exceed 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 $75,000,000; provided that 25,000,000 and any modification to such Indebtedness;
(d) so long as the Borrowers are in current compliance with and, after giving effect to the proposed incurrence of Indebtedness, will continue to Borrower would be in compliance with all Section 7.17 hereof (calculated as of the covenants in §§9 date of, and 10 hereof as if after giving effect to, the transaction occurred on the first day incurrence of such Indebtedness), other Indebtedness (excluding Indebtedness of the period type described in (e) below) which is unsecured and either junior in right of measurementpayment to the Obligations or 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 any documentation evidencing such Indebtedness in excess of $25,000,000 and any modification to such Indebtedness;
(pe) unsecured 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) the following Indebtedness of BGI and its domestic Subsidiaries that are Guarantors in respect SourceGas Holdings LLC, SourceGas LLC or any of earnout payments incurred their respective affiliates acquired in connection with any acquisition permitted under §9.5; provided that the Borrowers are in current compliance with andSourceGas Acquisition: (i) up to $95,000,000 principal amount of 3.98% Senior Secured Notes, after giving effect Series A, due September 29, 2019 of SourceGas Holdings LLC and (ii) up to the proposed incurrence $325,000,000 principal amount of Indebtedness, will continue to be in compliance with all 5.90% Senior Notes due 2017 of the covenants in §§9 and 10 hereof as if the transaction occurred on the first day of the period of measurementSourceGas LLC;
(g) Reserved;
(h) Permitted Derivative Obligations; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers pursuant to Long-Term Guaranties. Indebtedness shall only be permitted under (under paragraphs (j) or (ld)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs , (e), (fh), and (ji) above to the extent such Indebtedness will have a priority of payment with the Obligations which is no greater than pari passu (and with respect to clause (e), (l) or (oto the extent such Indebtedness is subordinated to the Obligations as set forth in such clause)) 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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection.
Appears in 1 contract
Restrictions on Indebtedness. None of the Borrowers willCAI 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:
(a) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan Documents;
(b) 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 §8.8;
(c) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which any Borrower or such Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review;
(d) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) 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 DateSubordinated 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 BGI’s foreign Subsidiaries not to exceed in any real or personal property by a Borrower or such Subsidiary or under any Capitalized Leases, providedthat (i) the aggregate for all such foreign Subsidiaries $100,000,000, including principal amount of such Indebtedness of CAI and its Subsidiaries shall not exceed $25,000,000 outstanding on at any one time and (ii) the Closing Date but excluding principal amount of such Indebtedness under the Loan Documents; provided that the Borrowers are in current compliance with and, after giving effect secured by or relating to the proposed incurrence lease of Indebtedness, will continue to be in compliance with all any particular property shall not exceed 100% of the covenants in §§9 and 10 hereof as if the transaction occurred on the first day purchase price of the period of measurementsuch property;
(g) Indebtedness of existing on 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 outstandingdate hereof and listed and described on Schedule9.1 hereto;
(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 Borrowers 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 Subsidiary manner which violates either §9.8 hereof or (iv) add to the collateral, if any, securing such Indebtedness in any manner that is a Guarantor in respect of Subordinated Debtwould violate §9.2;
(i) Indebtedness of CAI and its Subsidiaries consisting of short-term trade credit extended to CAI or such Subsidiary in the Borrowers owing to any Subsidiary ordinary course of such Borrower Person's business in connection with the acquisition of Containers, Chassis and other equipment; provided that is a Guarantor which is expressly subordinated to such Indebtedness shall not be in existence for more than 180 days after the prior payment in full in cash occurrence of all Obligations on terms disclosed to and reasonably acceptable to the Administrative Agent prior to the incurrence thereoftransaction giving rise thereto;
(j) Indebtedness in respect 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 acquisitionInterest Rate Protection Agreements;
(k) Indebtedness of any a Subsidiary 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 consisting of their Subsidiaries which are Guarantors are subject in an aggregate principal amount not to exceed $15,000,000 at any time outstandingInvestments permitted by §9.3(e);
(l) additional Indebtedness consisting of obligations (contingent or otherwise) of CAI or any Subsidiary existing or arising under any Swap Contract entered into with any Lender or the Borrowers not exceeding $35,000,000 less any Indebtedness incurred under paragraph (g)Administrative Agent, in aggregate principal amount at any one time outstanding;
(m) Indebtedness of Subsidiaries of the Borrowers which are Guarantors owing to any other Subsidiaries of the Borrowers which are Guarantors or to the Borrowers which results from an Investment permitted under §9.3(g) or provided that (i);
) such obligations are (nor were) Indebtedness of BGI and its domestic Subsidiaries which are Guarantors incurred in connection with Sale Leaseback Transactions, 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 supply chain financing entered into by such Person in the ordinary course of business which is nonrecourse 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 Borrowers defaulting party; and
(m) other Indebtedness in an aggregate principal amount outstanding not to exceed $250,000,000 at any time; provided that (i) both before and immediately after any such Indebtedness is incurred, no Default or Event of Default shall have occurred and be continuing and (ii) such Indebtedness (other than such Indebtedness in an amount not to exceed $75,000,000; provided that 20,000,000 in 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (f), (j), (l) or (o)aggregate) shall not exceed fifteen percent (15%) of Consolidated Total Assets of be subject to an Intercreditor Agreement with 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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary lenders in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection.
Appears in 1 contract
Sources: Revolving Credit Agreement (CAI International, Inc.)
Restrictions on Indebtedness. None of the The Borrowers willwill not, and will not ---------------------------- permit any of its their Restricted Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders Banks, the Issuing Bank and the Administrative Agent Agents arising under any of the Loan Documents;
(b) current liabilities of the Borrowers or their Restricted Subsidiaries incurred in the ordinary course of business not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(c) 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 (S)9.8;
(d) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which any Borrower or any of their Restricted Subsidiaries shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review;
(e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(cf) Indebtedness in respect of any Derivative Contracts in the ordinary course of business;
(d) Existing Senior CSX Remaining 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 aggregate principal amount of any of the Existing Senior Debt;
(e) such Indebtedness of BGI’s domestic Subsidiaries that are Guarantors shall 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 measurement8,922,105;
(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 Restricted 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 other Restricted Subsidiaries which are Guarantors are subject consisting of rights of reimbursement, contribution, subrogation and the like in an 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 to exceed the aggregate amount of $15,000,000 12,000,000 at any time outstandingone 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 US Guarantors, (ii) the Australian Borrower to any of the Australian Guarantors or any of the Australian Guarantors to the Australian Borrower or 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) additional Indebtedness in respect of performance, surety, statutory, insurance, appeal or similar bonds obtained in the Borrowers not exceeding $35,000,000 less any Indebtedness incurred under paragraph (g), in aggregate principal amount at any one time outstandingordinary course of business;
(m) Indebtedness of Subsidiaries of the Borrowers which are Guarantors owing to any other and their Restricted Subsidiaries in respect of the Borrowers which are Guarantors or to the Borrowers which results from an Investment permitted under §9.3(g) or (i)operating leases;
(n) Indebtedness of BGI and its domestic Subsidiaries which are Guarantors incurred in connection with Sale Leaseback Transactions, in an aggregate principal amount under the Willamette Valley Note not to exceed $25,000,000 400,000 in principal amount outstanding at any time outstandingtime;
(o) Indebtedness the Borrowers or any of BGI and its domestic their Restricted Subsidiaries which are Guarantors incurred in respect of guaranties of obligations in connection with accounts receivable securitizations on customary terms or supply chain financing Permitted Acquisitions and other Investments permitted by (S)10.3(i) and (k) and for the operation of any of their Restricted Subsidiaries (in the ordinary course of business which is nonrecourse each case, to the Borrowers in an aggregate amount extent the underlying Indebtedness with respect thereto is otherwise permitted under this (S)10.1), not to exceed $75,000,00010,000,000 in aggregate for all such permitted at any time; 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 other Indebtedness not included in the foregoing provisions of BGI and its domestic Subsidiaries that are Guarantors this (S)10.1 not to exceed $1,000,000 in respect of earnout payments incurred in connection with any acquisition permitted under §9.5; 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 at any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsectiontime outstanding.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Genesee & Wyoming Inc)
Restrictions on Indebtedness. None of the Borrowers willThe 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:
(a) Indebtedness to the Lenders Banks and the Administrative Agent arising under any of the Loan Documents;
(b) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) Indebtedness incurred in respect connection with the acquisition after the date hereof of any Derivative Contracts in real or personal property by the ordinary course Borrower or such Subsidiary or under any Capitalized Lease, provided that the aggregate principal amount of businesssuch Indebtedness of the Borrower and its Subsidiaries shall not exceed the aggregate amount of $4,000,000 at any one time;
(d) Existing Senior Debt, Indebtedness existing on the date of this Credit Agreement 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 Debtlisted and described on Schedule 9.1 hereto;
(e) Indebtedness of BGI’s domestic Subsidiaries that are Guarantors not a Guarantor to exceed $10,000,000, including the Borrower so long as such Indebtedness outstanding on Guarantor has guaranteed all the Closing DateObligations hereunder pursuant to the Guaranty and remains a Subsidiary of the Borrower;
(f) other unsecured 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 Subsidiaries 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, 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 supply chain financing in the ordinary course of business which is nonrecourse to the Borrowers this ss 9.1 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 measurement3,000,000 at any time outstanding;
(pg) the Subordinated Debt; provided, however, that the aggregate principal amount of all such Subordinated Debt of the Borrower and its Subsidiaries shall not exceed the aggregate amount of $4,000,000 at any one time; and
(h) unsecured Indebtedness of BGI and its domestic Subsidiaries that are Guarantors in respect the Borrower consisting of earnout payments incurred arrangements entered into in connection with any acquisition permitted under §9.5; Permitted Acquisitions, 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (f), (j), (l) or (o)) all such earnouts 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 purchase price amounts set forth in any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsectionss 9.5.1(c)(iv).
Appears in 1 contract
Restrictions on Indebtedness. None of the Borrowers will, and will not permit Credit Parties nor any of its Subsidiaries to, create, will incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness secured by purchase money security interests and Capitalized Leases permitted by Section 7.03(a)(viii) and any refinancing thereof or amendments or modifications thereof that do not have the effect of increasing the principal amount thereof (except by an amount not in excess of accrued and unpaid interest and premiums owing thereon and fees and expenses incurred in connection with such refinancing), changing the amortization thereof (other than to extend the Lenders and same), accelerating the Administrative Agent arising maturity date thereof or decreasing the weighted average life thereof;
(b) Indebtedness of the Credit Parties consisting of the Obligations under any of the Loan Documents;
(bc) endorsements Second Lien Debt in an aggregate principal amount not to exceed the aggregate principal amount outstanding on the Closing Date (plus interest paid in kind or capitalized and Warrant PIK Fees following the Closing Date in accordance with the terms of the Second Lien Documents) and in the case of and to the extent not duplicative of the foregoing, Second Lien Debt incurred pursuant to a Permitted Refinancing, such additional amounts as may be permitted pursuant to the definition of Permitted Refinancing;
(d) Indebtedness of the AA Canadian Subsidiaries under the Canadian Documents in an aggregate principal amount not to exceed Cdn. $11,000,000; provided that such Indebtedness is not secured by Liens except for collectionLiens permitted by Section 7.03(vi);
(e) 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, deposit changing the amortization thereof (other than to extend the same), decreasing the weighted average life thereof, accelerating the maturity date thereof or negotiation increasing the cash pay interest thereof;
(f) Indebtedness in respect of Swap Contracts entered into not for speculative purposes specifically permitted under Section 7.09;
(g) unsecured Subordinated Debt on terms and warranties conditions acceptable to the Required Lenders in their sole discretion, provided that the maturity date of products or servicessuch Subordinated Debt shall be at least one hundred and eighty (180) days following the Maturity Date (after taking in account any extension thereof);
(h) Indebtedness consisting of intercompany loans and advances permitted by Section 7.01;
(i) Guarantees by (i) any Credit Party of Indebtedness of any other Credit Party permitted by this Section 7.02, in each case (ii) any Subsidiary that is not a Credit Party of any Indebtedness of any Credit Party permitted by this Section 7.02 and (iii) any Subsidiary that is not a Credit Party of any Indebtedness of any other Subsidiary that is also not a Credit Party permitted by this Section 7.02;
(j) Indebtedness consisting of contingent liabilities under surety bonds and similar instruments incurred in the ordinary course of business;
(ck) Indebtedness in respect of any Derivative Contracts netting services, automatic clearing house arrangements and similar arrangement in the ordinary course of businessbusiness in each case in connection with deposit and securities account;
(dl) Existing Senior Debtto the extent constituting Indebtedness, and refundings, replacements obligations in respect of agreements for the deferred payment of premiums or refinancings thereof; provided to finance the deferred payment of premiums owing by any Credit Party under any insurance policies entered into in the ordinary course of business that no such refunding are either (i) unsecured or refinancing shall shorten the maturity or weighted average life to maturity or increase the principal amount of any of the Existing Senior Debt(ii) secured by a Lien permitted under Section 7.03(xv);
(em) Indebtedness Guarantees by Holdings consisting of BGI’s domestic Subsidiaries that are Guarantors not to exceed $10,000,000, including such Indebtedness outstanding on the Closing DateLiens permited by Section 7.03(vi)(a)(y) and Section 7.03(vi)(b);
(fn) Attributable 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 incurred following the Closing Date but excluding Indebtedness under the Loan Documents; provided that the Borrowers are in current compliance with and, after giving effect pursuant 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;sale-leaseback transactions permitted by Section 7.06.
(go) other unsecured 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 $30,000,000 250,000 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 Subsidiaries 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, 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 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection.
Appears in 1 contract
Restrictions on Indebtedness. None of the Borrowers will, and will not permit any of its Subsidiaries to, createCreate, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders Agent and the Administrative Agent Lenders (and their respective Affiliates) arising under any of the Loan Documents;
(b) current liabilities of the Borrower incurred in the ordinary course of 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;
(c) Indebtedness (other than relating to the Collateral Properties) in an aggregate amount not in excess of $250,000 in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §8.9;
(d) Indebtedness (other than relating to the Collateral Properties) in an aggregate amount not in excess of $1,000,000 in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which, at the time, a good faith appeal or proceeding for review is being prosecuted, and in respect of which a stay of execution shall have been obtained pending such appeal or review;
(e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(cf) Indebtedness of the Borrower existing on the Closing Date and listed and described on Schedule 9.1 hereto or in respect the financial statements delivered pursuant to §7.4, including any refinancing of any Derivative Contracts in the ordinary course of business;
(ddebt listed on Schedule 9.1(f) Existing Senior Debthereto, and refundings, replacements or refinancings thereof; provided that no (i) such refunding refinancing is Without Recourse to the Borrower or refinancing shall shorten the maturity or weighted average life Trust and is Without Recourse to maturity or increase any of the principal amount respective assets of any of the Existing Senior Debt;
Borrower or the Trust other than to the specific Real Estate Asset being refinanced, and (eii) Indebtedness at the time of BGI’s domestic Subsidiaries that are Guarantors not to exceed $10,000,000, including any 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, refinancing and after giving effect to the proposed incurrence thereto, there exists no Default or Event 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 measurementDefault hereunder;
(g) Indebtedness of the Borrowers Borrower incurred after the Closing Date, provided that: (i) such Indebtedness is Without Recourse to the Borrower or the Trust and is Without Recourse to any Subsidiary that is a Guarantor that constitutes a Synthetic Lease of the respective assets of any of the Borrower or Capitalized Lease or otherwise incurred to finance the acquisition of fixed or capital assets (Trust other than pursuant to Sale Leaseback Transactions 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; and
(h) contingent liabilities of the Borrower disclosed in the financial statements referred to in §9.1(n)7.4 or on Schedule 9.1(h) hereto, whether pursuant to and such other contingent liabilities of the Borrower having a loan, financing lease or otherwise) in an combined aggregate principal amount potential liability of not to exceed more than $30,000,000 1,000,000 at any time outstanding;
(h) Indebtedness of the Borrowers or any Subsidiary that is a Guarantor in respect of Subordinated Debttime;
(i) Indebtedness of the Borrowers owing to any Subsidiary Borrower for the purchase price of such Borrower that is a Guarantor which is expressly subordinated to the prior payment capital assets (other than Real Estate Assets but including Indebtedness in full in cash respect of all Obligations on terms disclosed to and reasonably acceptable to the Administrative Agent prior to the incurrence thereof;
(jCapitalized Leases) 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 Subsidiaries 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, 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 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; business, provided that the Borrowers are in current compliance with and, after giving effect to the proposed incurrence aggregate principal amount 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;
Indebtedness permitted by this clause (pi) unsecured Indebtedness of BGI and its domestic Subsidiaries that are Guarantors in respect of earnout payments incurred in connection with shall not exceed $500,000 at any acquisition permitted under §9.5; 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 measurementtime outstanding; and
(qj) unsecured Recourse Indebtedness of BGI and its domestic Subsidiaries which are Guarantorsthe Borrower incurred after the Closing Date (other than relating to the Collateral Properties) in connection with the purchase of or the construction of or renovation of improvements on any Real Estate Asset, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) the aggregate principal amount of Indebtedness of the Borrowers (under paragraphs permitted by this clause (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (f), (j), (l) or (o)) shall not exceed fifteen percent $10,000,000 at any time outstanding, and (15%ii) at the time any such Indebtedness is incurred and after giving effect thereto, there exists no Default or Event of Consolidated Total Assets Default hereunder. It is understood and agreed that the provisions of this §9.1 shall not apply to Indebtedness of any Partially-Owned Entity which is Without Recourse to the BorrowersBorrower or the Trust, determined as or any of the end their respective assets. The terms and provisions of the then most recently completed fiscal year of the Borrowers. For the avoidance of doubtthis §9.1 are in addition to, and not in limitation of, the parties acknowledge and agree that if Indebtedness permitted covenants set forth in any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection§10.
Appears in 1 contract
Sources: Revolving Credit Agreement (First Potomac Realty Trust)
Restrictions on Indebtedness. None of the Borrowers willCAI 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:
(a) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan Documents;
(b) 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 §8.8;
(c) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the Borrower or such Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review;
(d) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) 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 DateSubordinated 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 BGI’s foreign Subsidiaries not to exceed in any real or personal property by the Borrower or such Subsidiary or under any Capitalized Leases, provided that (i) the aggregate for all such foreign Subsidiaries $100,000,000, including principal amount of such Indebtedness of CAI and its Subsidiaries shall not exceed $50,000,000 outstanding on at any one time and (ii) the Closing Date but excluding principal amount of such Indebtedness under the Loan Documents; provided that the Borrowers are in current compliance with and, after giving effect secured by or relating to the proposed incurrence lease of Indebtedness, will continue to be in compliance with all any particular property shall not exceed 100% of the covenants in §§9 and 10 hereof as if the transaction occurred on the first day purchase price of the period of measurementsuch property;
(g) Indebtedness of existing on 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 outstandingRestatement Date and listed and described on Schedule 9.1 hereto;
(h) any renewal or refinancing of any Indebtedness permitted under this §9.1; provided that any such refinancing or renewal does not independently violate any restriction, basket, limitation or other provision of the Borrowers or any Subsidiary that is a Guarantor in respect of Subordinated Debtthis §9;
(i) Indebtedness of CAI and its Subsidiaries consisting of short-term trade credit extended to CAI or such Subsidiary in the Borrowers owing to any Subsidiary ordinary course of such Borrower Person’s business in connection with the acquisition of Containers and other equipment; provided that is a Guarantor which is expressly subordinated to such Indebtedness shall not be in existence for more than 180 days after the prior payment in full in cash occurrence of all Obligations on terms disclosed to and reasonably acceptable to the Administrative Agent prior to the incurrence thereoftransaction giving rise thereto;
(j) Indebtedness in respect 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 acquisitionInterest Rate Protection Agreements;
(k) Indebtedness of any a Subsidiary of the Borrowers or any Borrower to the Borrower consisting 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 outstandingInvestments permitted by §9.3(e);
(l) additional Indebtedness consisting of obligations (contingent or otherwise) of CAI or any Subsidiary existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the Borrowers 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 exceeding $35,000,000 less for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any Indebtedness incurred under paragraph (g), in aggregate principal amount at any one time outstandingprovision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(m) Indebtedness of Subsidiaries of the Borrowers which are Guarantors owing to any other Subsidiaries of the Borrowers which are Guarantors or to the Borrowers which results from an Investment permitted under §9.3(g) or (i)incurred by a Securitization Entity in connection with a Permitted Securitization;
(n) other Indebtedness consisting of:
(i) Indebtedness that is unsecured;
(ii) Indebtedness that is secured; provided that any such secured Indebtedness either: (w) is secured by assets that are not commingled with the Collateral; (x) if secured by assets that are commingled with the Collateral, is subject to the Intercreditor Agreement; (y) if CAI Rail Indebtedness, complies with the provisions of §9.14; or (z) consists of Indebtedness of BGI Excluded Subsidiaries; or
(iii) other secured Indebtedness not to exceed $60,000,000 in the aggregate; provided that both before and its domestic Subsidiaries which immediately after any such Indebtedness described in this clause (n) is incurred, no Default or Event of Default shall have occurred and be continuing and the proceeds of such Indebtedness are Guarantors used solely for (A) repayments of Term Loans pursuant to §3.3, (B) the acquisition of assets and fees, costs and expenses incurred in connection with Sale Leaseback Transactions, in an aggregate principal amount not to exceed $25,000,000 at the acquisition of assets or (C) for the refinancing of any time outstanding;such Indebtedness; and
(o) Indebtedness of BGI and its domestic Subsidiaries which are Guarantors incurred in connection with accounts receivable securitizations on customary terms or 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any CAI consisting of its Subsidiaries, and BGI guarantees the obligations one or more guaranties of any Subsidiary in respect of such CAI Rail Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection.
Appears in 1 contract
Restrictions on Indebtedness. None of the Borrowers willThe 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:
(a) Indebtedness to the Lenders Banks and the Administrative Agent arising under any of the Loan Documents;
(b) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) Indebtedness incurred in respect connection with the acquisition after the date hereof of any Derivative Contracts in real or personal property by the ordinary course Borrower or such Subsidiary or under any Capitalized Lease, provided that the aggregate principal amount of businesssuch Indebtedness of the Borrower shall not exceed the aggregate amount of $5,000,000 at any one time;
(d) Existing Senior DebtIndebtedness existing on the date hereof and listed and described on Schedule 10.1 hereto, or described in the Disclosure Documents, and refundingsany refinancing thereof, replacements or refinancings thereof; provided that having covenants and maturities no such refunding or refinancing shall shorten less favorable to the maturity or weighted average life to maturity or Borrower than the Indebtedness being refinanced, and which does not increase the principal amount of any of the Existing Senior DebtIndebtedness being refinanced;
(e) Indebtedness of BGI’s domestic Subsidiaries that are Guarantors not to exceed $10,000,000, including such Indebtedness outstanding a Subsidiary of the Borrower existing on the Closing Datedate hereof to the Borrower;
(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 measurementBangor Energy Guaranty;
(g) non-recourse Indebtedness of the Borrowers or any Subsidiary participating in 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 is 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 requirements of this paragraph);
(i) guarantees of the Borrower of the indebtedness of others, as set forth in Exhibit G, but only to the extent and upon the terms indicated;
(j) Indebtedness with respect to the Chase L/C until replacement by a Guarantor that constitutes a Synthetic Lease or Capitalized Lease or Letter of Credit hereunder; and
(k) any unsecured Indebtedness not 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) permitted by this Section 10.1 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 the sum of Subsidiaries of the Borrowers which are Guarantors owing to any other Subsidiaries of the Borrowers which are Guarantors or to the Borrowers which results from an Investment permitted under §9.3(g) or (i);
) $5,000,000 plus (nii) Indebtedness an amount equal to 50% of BGI and its domestic Subsidiaries which are Guarantors incurred in connection with Sale Leaseback Transactions, 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 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of any reductions in the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Commitments made pursuant to Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection2.3.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Bangor Hydro Electric Co)
Restrictions on Indebtedness. None of the Borrowers willThe 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:
(a) Indebtedness to the Lenders Banks and the Administrative Agent arising under any of the Loan Documents;
(b) current liabilities of the Borrower incurred in the ordinary course of business not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(c) 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 ss.9.8;
(d) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the Borrower shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review;
(e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) 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 measurementSubordinated Debt;
(g) Indebtedness of the Borrowers or any Subsidiary that is a Guarantor that constitutes a Synthetic Lease or obligations under Capitalized Lease or otherwise incurred to finance the acquisition of fixed or capital assets (other than pursuant to Sale Leaseback Transactions referred to Leases not exceeding $1,000,000 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 incurred in connection with the acquisition after the date hereof of any real or personal property by the Borrowers Borrower or any Subsidiary of the Borrower, PROVIDED that is a Guarantor in respect the aggregate principal amount of Subordinated Debtsuch Indebtedness of the Borrower and its Subsidiaries shall not exceed the aggregate amount of $1,000,000 at any one time;
(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 Subsidiaries 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, 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 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 existing on the first day date 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 the proposed incurrence of Indebtedness, will continue to be in compliance with all of the covenants in §§9 Agreement and 10 hereof as if the transaction occurred listed and described on the first day of the period of measurement. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection.SCHEDULE 10.1 hereto;
Appears in 1 contract
Sources: Credit Agreement (HPSC Inc)
Restrictions on Indebtedness. None of the Borrowers willIt 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:
(a) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan Documents;
(b) 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 §8.8;
(c) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which such Loan Party or such Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review;
(d) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) 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 DateSubordinated 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 BGI’s foreign Subsidiaries not to exceed in any real or personal property by such Loan Party or such Subsidiary or under any Capitalized Leases, provided that (i) the aggregate for all such foreign Subsidiaries $100,000,000, including principal amount of such Indebtedness of the Guarantor and its Subsidiaries shall not exceed $100,000,000 outstanding on at any one time and (ii) the Closing Date but excluding principal amount of such Indebtedness under the Loan Documents; provided that the Borrowers are in current compliance with and, after giving effect secured by or relating to the proposed incurrence lease of Indebtedness, will continue to be in compliance with all any particular property shall not exceed 100% of the covenants in §§9 and 10 hereof as if the transaction occurred on the first day purchase price of the period of measurementsuch property;
(g) Indebtedness of the Borrowers Borrower or any Subsidiary that is a the Guarantor that constitutes a Synthetic Lease or Capitalized Lease or otherwise incurred under the Senior Revolving Credit Facility (which Indebtedness may vary in amount from time to finance time as permitted thereunder) and other Indebtedness existing on 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 outstandingdate hereof and listed and described on Schedule 9.1 hereto;
(h) any renewal or refinancing of any Indebtedness permitted under this §9.1; provided that any such refinancing or renewal does not independently violate any restriction, basket, limitation or other provision of the Borrowers or any Subsidiary that is a Guarantor in respect of Subordinated Debtthis §9;
(i) Indebtedness of the Borrowers owing Guarantor and its Subsidiaries consisting of short-term trade credit extended to any the Guarantor or such Subsidiary in the ordinary course of such Borrower Person’s business in connection with the acquisition of Containers and other equipment; provided that is a Guarantor which is expressly subordinated to such Indebtedness shall not be in existence for more than 180 days after the prior payment in full in cash occurrence of all Obligations on terms disclosed to and reasonably acceptable to the Administrative Agent prior to the incurrence thereoftransaction giving rise thereto;
(j) Indebtedness in respect 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 acquisitionInterest Rate Protection Agreements;
(k) Indebtedness of any a Subsidiary of the Borrowers or any a Loan Party to another Loan Party consisting 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 outstandingInvestments permitted by §9.3(e);
(l) additional Indebtedness consisting of obligations (contingent or otherwise) of the Borrowers Guarantor or any Subsidiary existing or arising under any Swap Contract, provided that (i) such obligations are (or 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 exceeding $35,000,000 less for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any Indebtedness incurred under paragraph (g), in aggregate principal amount at any one time outstandingprovision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(m) Indebtedness of Subsidiaries of the Borrowers which are Guarantors owing to any other Subsidiaries of the Borrowers which are Guarantors or to the Borrowers which results from an Investment permitted under §9.3(g) or (i)incurred by a Securitization Entity in connection with a Permitted Securitization;
(n) other Indebtedness consisting of
(i) Indebtedness that is unsecured;
(ii) Indebtedness that is secured; provided that any such secured Indebtedness either: (w) is secured by assets that are not commingled with the Collateral; (x) if secured by assets that are commingled with the Collateral, is subject to the Intercreditor Agreement; (y) if CAI Rail Indebtedness, complies with the provisions of §9.14; or (z) consists of Indebtedness of BGI Excluded Subsidiaries; or
(iii) other secured Indebtedness not to exceed $100,000,000 in the aggregate; provided that both before and its domestic Subsidiaries which immediately after any such Indebtedness is incurred, no Default or Event of Default shall have occurred and be continuing and the proceeds of such Indebtedness are Guarantors 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 Sale Leaseback Transactions, in an aggregate principal amount not to exceed $25,000,000 at the acquisition of assets or (C) for the refinancing of any time outstanding;such Indebtedness; and
(o) Indebtedness of BGI and its domestic Subsidiaries which are Guarantors incurred in connection with accounts receivable securitizations on customary terms or 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any the Guarantor consisting of its Subsidiaries, and BGI guarantees the obligations one or more guaranties of any Subsidiary in respect of such CAI Rail Indebtedness or Logistics Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection.
Appears in 1 contract
Restrictions on Indebtedness. None of the Borrowers willCAI 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:
(a) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan Documents;
(b) 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 §8.8;
(c) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the Borrower or such Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review;
(d) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) 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 DateSubordinated 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 BGI’s foreign Subsidiaries not to exceed in any real or personal property by the Borrower or such Subsidiary or under any Capitalized Leases, provided that (i) the aggregate for all such foreign Subsidiaries $100,000,000, including principal amount of such Indebtedness of CAI and its Subsidiaries shall not exceed $25,000,000 outstanding on at any one time and (ii) the Closing Date but excluding principal amount of such Indebtedness under the Loan Documents; provided that the Borrowers are in current compliance with and, after giving effect secured by or relating to the proposed incurrence lease of Indebtedness, will continue to be in compliance with all any particular property shall not exceed 100% of the covenants in §§9 and 10 hereof as if the transaction occurred on the first day purchase price of the period of measurementsuch property;
(g) Indebtedness of existing on 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 outstandingdate hereof and listed and described on Schedule 9.1 hereto;
(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 Borrowers interest rate or fees applicable to, or shorten the weighted average life to maturity of, such Indebtedness, (iii) [reserved] or (iv) add to the collateral, if any, securing such Indebtedness in any Subsidiary manner that is a Guarantor in respect of Subordinated Debtwould violate §9.2;
(i) Indebtedness of CAI and its Subsidiaries consisting of short-term trade credit extended to CAI or such Subsidiary in the Borrowers owing to any Subsidiary ordinary course of such Borrower Person’s business in connection with the acquisition of Containers and other equipment; provided that is a Guarantor which is expressly subordinated to such Indebtedness shall not be in existence for more than 180 days after the prior payment in full in cash occurrence of all Obligations on terms disclosed to and reasonably acceptable to the Administrative Agent prior to the incurrence thereoftransaction giving rise thereto;
(j) Indebtedness in respect 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 acquisitionInterest Rate Protection Agreements;
(k) Indebtedness of any a Subsidiary of the Borrowers or any Borrower to the Borrower consisting 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 outstandingInvestments permitted by §9.3(e);
(l) additional Indebtedness consisting of obligations (contingent or otherwise) of CAI or any Subsidiary existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the Borrowers 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 exceeding $35,000,000 less for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any Indebtedness incurred under paragraph (g), in aggregate principal amount at any one time outstandingprovision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(m) Indebtedness of Subsidiaries of the Borrowers which are Guarantors owing to any other Subsidiaries of the Borrowers which are Guarantors or to the Borrowers which results from an Investment permitted under §9.3(g) or (i);incurred by a Securitization Entity in connection with a Permitted Securitization; and
(n) other Indebtedness at any time; provided that (i) both before and immediately after any such Indebtedness is incurred, no Default or Event of BGI Default shall have occurred and its domestic Subsidiaries which are Guarantors incurred in connection with Sale Leaseback Transactionsbe continuing and (ii) if such indebtedness is secured, such Indebtedness (other than such Indebtedness 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 supply chain financing 30,000,000 in the ordinary course of business which is nonrecourse aggregate) shall be subject to the Borrowers in an aggregate amount not to exceed $75,000,000; provided that Intercreditor Agreement with 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary lenders in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection.
Appears in 1 contract
Restrictions on Indebtedness. None of the The Borrowers willwill not, and will not permit any of its their Subsidiaries to, create, incur, assume, guarantee guarantee, or be or remain liable, contingently or otherwise, with respect to to, any Indebtedness other than:
(a) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan Documents;
(b) current liabilities of any of the Borrowers or their Subsidiaries incurred in the ordinary course of business not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(c) 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 9.8;
(d) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which any of the Borrowers or Subsidiaries shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review;
(e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) 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 measurementSubordinated Debt;
(g) Indebtedness of obligations under Capitalized Leases not exceeding $15,000,000 in 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 incurred in connection with the acquisition after the date hereof of any real or personal property by any of the Borrowers or their Subsidiaries (including Approved Acquisitions), provided that the aggregate principal amount of such Indebtedness of the Borrowers and their Subsidiaries shall not exceed the aggregate amount of $7,500,000 at any Subsidiary that is a Guarantor in respect of Subordinated Debtone time;
(i) Indebtedness of existing on 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 date hereof and listed and described on terms disclosed to and reasonably acceptable to the Administrative Agent prior to the incurrence thereof;Schedule 10.1 hereto; and
(j) Indebtedness of a Person outstanding at the time it is first acquired by any member 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 ICT Group to any other Subsidiaries member 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, 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 supply chain financing in the ordinary course of business which is nonrecourse to the Borrowers in an aggregate amount not to exceed $75,000,000ICT Group; provided that such Indebtedness and the Borrowers are right to repayment thereof shall constitute Collateral in current compliance with andwhich the Agent has a perfected, after giving effect first priority security interest, and all such Indebtedness shall be subject to the proposed incurrence subordination provisions of Indebtedness, will continue to be in compliance with all section 5 and section 6.13 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection.
Appears in 1 contract
Sources: Credit Agreement (Ict Group Inc)
Restrictions on Indebtedness. None of the 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:
(a) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan Documents;
(b) current liabilities of the Borrowers incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(c) 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;
(d) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) 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 the Parent Borrower 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 connection with and, after giving effect to the proposed incurrence of Indebtedness, will continue to be in compliance with all of the covenants in §§9 completion 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) similar guaranties 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 not in excess of the Borrowers which are Guarantors owing to any other Subsidiaries 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, 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 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount greater of (i) Indebtedness of the Borrowers (under paragraphs (j) $175,000,000 or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (f), (j), (l) or (o)) shall not exceed fifteen percent (15%) of Consolidated Total Assets the Gross Asset Value;
(g) Other Indebtedness of the BorrowersParent Borrower, determined as the REIT or any of their Subsidiaries (other than any Subsidiary Borrower), provided that none of such Persons shall incur any of the end Indebtedness described in this §8.1(g) unless it shall have provided to the Agent prior written notice 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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect proposed incurrence of such Indebtedness, a statement that the BGI Guaranty borrowing will not cause a Default or Event of Default and a Compliance Certificate demonstrating that the Borrowers will be in compliance with its covenants referred to therein after giving effect to the incurrence of such Indebtedness; and
(h) Derivative Contracts reasonably acceptable to Agent sufficient to ensure the Borrowers’ compliance with §9.7. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §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 (provided that the foregoing shall not increase preclude Subsidiaries of the amount Borrowers (other than a Subsidiary Borrower) to incur Indebtedness subject to the terms of this §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 deemed incurred under such subsection(including, without limitation, pursuant to any conditional or limited guaranty or indemnity agreement creating liability with respect to usual and customary exclusions from the non recourse limitations governing the Non-Recourse Indebtedness of any Person, or otherwise) other than Indebtedness described in §§8.1(a)-(g) above.
Appears in 1 contract
Restrictions on Indebtedness. None of the Borrowers willThe 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:
(a) Indebtedness to the Lenders Banks and the Administrative Agent Agents arising under any of the Loan Documents;
(b) current liabilities of the Borrower or such Subsidiary incurred in the ordinary course of business not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(c) 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 8.8;
(d) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the Borrower or such Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review;
(e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) 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 existing 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 date hereof and 10 hereof as if the transaction occurred listed and described on the first day of the period of measurementSchedule 9.1 hereto;
(g) Indebtedness owed by the Borrower or any of its Subsidiaries to trade vendors, in the amount of the Borrowers cost to the Borrower or any such Subsidiary that is a Guarantor that constitutes a Synthetic Lease or Capitalized Lease or otherwise incurred to finance of inventory held on consignment from such trade vendors; and
(h) Indebtedness of the acquisition of fixed or capital assets (Borrower and its Subsidiaries other than pursuant to Sale Leaseback Transactions referred to that permitted elsewhere in §9.1(n), whether pursuant to a loan, financing lease or otherwise) this Section 9.1 in an aggregate principal amount not to exceed $30,000,000 2,000,000 at any time outstanding;
(h) Indebtedness of the Borrowers or any Subsidiary ; provided that is a Guarantor in respect of Subordinated Debt;
(i) the Net Proceeds from such Indebtedness are applied in accordance with Section 5.8 hereof and (ii) no Default or Event of the Borrowers owing to any Subsidiary of such Borrower that Default has occurred and 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 continuing 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 is 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 Subsidiaries 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, 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 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, none would exist after giving effect to thereto; provided, however, the proposed incurrence Borrower will not, and will not permit any of Indebtednessits Subsidiaries to, will continue to be engage in compliance with all any form 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors"off balance sheet" financing, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, in respect the lease of convertible notes, with a maturity date later than any assets by the Maturity Date; 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) Borrower or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees Subsidiaries as lessee under any synthetic lease referred to in clause (vi) of the obligations above definition of any Subsidiary in respect of such the term "Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection."
Appears in 1 contract
Sources: Revolving Credit and Gold Consignment Agreement (Whitehall Jewellers Inc)
Restrictions on Indebtedness. None of the Borrowers willThe Borrower will not, and will not permit any of its Restricted Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders Lenders, the Issuing Bank and the Administrative Agent arising under any of the Loan Documents;
(b) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) Indebtedness incurred in respect connection with the acquisition or lease after the date hereof of any Derivative Contracts in real or personal property by the ordinary course Borrower or such Restricted Subsidiary (including Indebtedness evidenced by Capital Leases and Synthetic Leases permitted pursuant to §9.6 herein), provided that the aggregate principal amount of businesssuch Indebtedness of the Borrower and its Restricted Subsidiaries shall not exceed the aggregate amount of $40,000,000 at any one time;
(d) Existing Senior DebtIndebtedness existing on the date hereof and listed and described on Schedule 9.1 hereto and any refinancing or renewal of such Indebtedness; provided, and refundingsthat any such refinancing or renewal does not (i) increase the aggregate amount of such Indebtedness (except by the amount of any premium or fee paid or payable in connection with such extension, replacements renewal or refinancings thereof; provided that no such refunding or refinancing shall replacement), (ii) shorten the maturity or weighted average life to maturity of, such Indebtedness, (iii) change, alter or increase modify the principal amount terms of such Indebtedness in any of manner which violates either §9.8 or the Existing Senior DebtIntercreditor Agreement or (iv) add to the collateral, if any, securing such Indebtedness;
(e) Indebtedness of BGI’s domestic the Borrower to any of its Restricted Subsidiaries or of any Restricted Subsidiary to the Borrower or any other Subsidiary of the Borrower; provided, that are Guarantors Indebtedness of any Subsidiary of the Borrower that is not a Guarantor shall be subject to exceed $10,000,000§9.3, including such Indebtedness outstanding on and guarantees by the Closing DateBorrower of the obligations of any of its Subsidiaries or guarantees by any Subsidiary of the obligations of the Borrower or any its other Subsidiaries; provided, that guarantees by the Borrower or any Guarantor of obligations of any Subsidiary that is not a Guarantor shall be subject to §9.3;
(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;[Reserved]
(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;[Reserved]
(h) Indebtedness of under interest rate protection agreements and hedging agreements which are non-speculative in nature and are entered into to protect the Borrowers Borrower and/or its Subsidiaries against fluctuations in interest rates, currency exchange rates or any Subsidiary that is a Guarantor in respect of Subordinated Debtcommodity prices;
(i) Indebtedness of the Borrowers owing to any Person that becomes a Restricted Subsidiary of the Borrower after the date hereof, provided, that such Indebtedness (1) exists at the time such Person becomes a Restricted Subsidiary of the Borrower, (2) is not created in contemplation of or in connection with such Person becoming a Subsidiary of the Borrower that is a Guarantor which is expressly subordinated to and (3) otherwise complies with the prior payment in full in cash provisions of all Obligations on terms disclosed to and reasonably acceptable to the Administrative Agent prior to the incurrence thereofthis §9.1 including §9.1(k);
(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;[Reserved]; and
(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 Subsidiaries 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 Borrower and its domestic Restricted Subsidiaries which are Guarantors incurred in connection with Sale Leaseback Transactions, in an aggregate principal amount not to exceed $25,000,000 40,000,000 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 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection.
Appears in 1 contract
Restrictions on Indebtedness. None of the Borrowers willBorrower will not, and nor will not it permit any Subsidiary of its Subsidiaries Borrower to, createissue, 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:
(a) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan DocumentsObligations;
(b) endorsements for collectionNon-Recourse Indebtedness of any Project Finance Subsidiary;
(c) secured Indebtedness (excluding Indebtedness of the type described in (e), deposit (f), and (g) below but including the pledge of stock or negotiation 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 on Schedule 7.15(b) hereto, and warranties (B) (i) of products BHP, (ii) evidencing the deferred purchase price of newly acquired property or services, in each case incurred to finance the acquisition of personal property of the Borrower or a Subsidiary of the Borrower used in the ordinary course of business;
business of the Borrower or Subsidiary, (ciii) Indebtedness constituting Capitalized Lease Obligations or with respect to synthetic (or similar type) lease arrangements, or (iv) incurred in respect connection with the performance of any Derivative Contracts tenders, statutory obligations, bids, leases or other similar obligations (other than for borrowed money) entered into in the ordinary course of businessbusiness 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 excess of $25,000,000 and any modification to such Indebtedness;
(d) Existing Senior Debtother Indebtedness (excluding Indebtedness of the type described in (e), (f), and refundings(g) below) which is unsecured and either junior in right of payment to the Obligations or pari passu to the Obligations or is equally and ratably secured with the Obligations, replacements or refinancings thereof; provided that no such refunding or refinancing Borrower shall shorten promptly provide the maturity or weighted average life to maturity or increase the principal amount Administrative Agent with a copy of any documentation evidencing such Indebtedness in excess of the Existing Senior Debt$25,000,000 and any modification to such Indebtedness;
(e) Indebtedness 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 BGI’s domestic 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 that are Guarantors does not to exceed the difference between (I) $10,000,000, including 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 Indebtedness outstanding on limit is exceeded solely as a result of an increase in the Closing Datevalue 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 BGI’s foreign 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), does not exceed $10,000,000 (it being understood that to exceed the extent such limit is exceeded solely as a result of an increase in the aggregate for all value of any 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 Investment attributable to the proposed incurrence of Indebtedness, will continue to be in compliance with all undistributed net earnings of the covenants in §§9 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 10 hereof as if the transaction occurred on the first day of the period of measurementany modification to such Guarantee;
(g) Indebtedness of the Borrowers or any Marketing Subsidiaries under Marketing 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 Excluded 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 Subsidiaries 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, 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 supply chain financing in the ordinary course of business which is nonrecourse to the Borrowers Facilities 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 measurementMarketing Subsidiary Indebtedness Limit;
(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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection.
Appears in 1 contract
Restrictions on Indebtedness. None of the Borrowers will, and No Borrower 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:
(a) a. Indebtedness to the Lenders and the Administrative Agent Bank arising under any of the Loan Documents;
b. current liabilities of such Borrower incurred in the ordinary course of business and not incurred through (bi) the borrowing of money or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
c. 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 REF 8.07;
d. Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which such Borrower shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained and be in effect pending such appeal or review;
e. endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) Indebtedness in respect f. loans from shareholders of any Derivative Contracts in CompuDyne, to the ordinary course of business;
(d) Existing Senior Debtextent the same are subordinated to the Obligations pursuant to the Subordination Agreement, 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) g. 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 acquisition after the date hereof of any surety bondsreal or personal property by such Borrower, Performance Letters of Credit or other similar performance bonds required pursuant to any contractual Obligation or requirement of law to which any of provided that 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 of such Indebtedness of the Borrowers shall 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 Subsidiaries 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, 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 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) $100,000 at any one time;
h. Indebtedness of existing on the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) date hereof and listed and described on Schedule 9.01 hereto; and
i. contingent Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees Borrower in connection with the obligations execution of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsectionone or more Surety Agreements.
Appears in 1 contract
Sources: Credit Agreement (Compudyne Corp)
Restrictions on Indebtedness. None of the Borrowers willThe 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:
(a) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan Documents;
(b) endorsements for collection, deposit Indebtedness of the Borrower to any Subsidiary and any Subsidiary to the Borrower or negotiation and warranties of products any other Subsidiary to the extent the Indebtedness referred to in this §9.1(b) evidences a loan or services, in each case incurred in the ordinary course of businessadvance permitted under §9.3;
(c) Indebtedness in respect consisting of any Derivative Contracts reimbursement obligations under surety, indemnity, performance, release and appeal bonds and guarantees thereof and letters of credit required in the ordinary course of businessbusiness or in connection with the enforcement of rights or claims of the Borrower or its Subsidiaries, in each case to the extent a Letter of Credit supports in whole or in part the obligations of the Borrower and its Subsidiaries with respect to such bonds, guarantees and letters of credit;
(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 Subordinated Debt;
(e) Indebtedness in respect of BGI’s domestic Subsidiaries that are Guarantors not Capitalized Leases, Synthetic Leases and purchase money obligations for fixed or capital assets, and if subject to exceed $10,000,000a Lien permitted by §9.2.1(iv), including within the limitations set forth in such §9.2.1(iv); provided, however, the aggregate amount of such Indebtedness outstanding on of the Closing DateBorrower and its Subsidiaries shall not exceed the aggregate amount of $15,000,000 at any one time;
(f) Indebtedness permitted by §9.10 in respect 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 measurementHedging Agreements;
(g) Indebtedness of existing on the Borrowers date hereof and listed and described on Schedule 9.1 hereto including any extension or any Subsidiary that is a Guarantor that constitutes a Synthetic Lease renewals or Capitalized Lease or otherwise incurred to finance refinancing thereof, provided 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 thereof is not to exceed $30,000,000 at any time outstandingincreased;
(h) Indebtedness consisting of guarantees by 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 its Subsidiaries which are Guarantors incurred in connection with the issuance ordinary course 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 business for an aggregate principal amount not to exceed $15,000,000 at any time outstandingone time;
(i) Indebtedness consisting of the Subsidiary Guaranties;
(j) Indebtedness consisting of guarantees of the Borrower and the Subsidiary Guarantors in respect of Indebtedness otherwise permitted hereunder of the Borrower or any wholly-owned Subsidiary of the Borrower;
(k) Indebtedness owed to a seller as part of the purchase price in connection with a Permitted Acquisition or that (i) relates to the customary post-closing adjustments with respect to accounts receivable, accounts payable, net worth and/or similar items typically subject to post-closing adjustments in similar transactions, and are outstanding for a period of two (2) years or less following the creation thereof or (ii) relates to indemnities granted to the seller in the transaction; and
(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 Subsidiaries of the Borrowers which are Guarantors or pursuant 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, 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 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Existing Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection.
Appears in 1 contract
Restrictions on Indebtedness. None Each of the Borrowers willParent Companies and the Borrower will not, and will not permit any of its their Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness Indebtedness; provided that any of the Parent Companies, the Borrower or any of their Subsidiaries (other thanthan the Restricted Subsidiaries) may create, incur, assume, guarantee or be or remain liable for:
(a) Indebtedness to the Lenders Banks and the Administrative Agent arising under any of the Loan Documents;
(b) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) Indebtedness in respect of any Derivative Contracts in the ordinary course of businessSubordinated Debt;
(d) Existing Senior DebtIndebtedness incurred in connection with the acquisition after the date hereof of any real or personal property by the Parent Companies, and refundingsthe Borrower or such Subsidiary, 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 all such Indebtedness of the Existing Senior DebtParent Companies, the Borrower and their Subsidiaries shall not exceed the aggregate amount of $5,000,000 at any one time;
(e) Indebtedness of BGI’s domestic Subsidiaries that are Guarantors not to exceed $10,000,000, including such Indebtedness outstanding existing on the Closing Datedate hereof and listed and described in the Letter Agreement;
(f) Indebtedness to any Bank in connection with any derivative contract (as defined in clause (i) of BGI’s foreign Subsidiaries not to exceed in the aggregate for all definition of Indebtedness) provided by 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 Bank 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 measurementBorrower;
(g) unsecured Indebtedness incurred in connection with foreign exchange contracts or letter of credit facilities provided by lending institutions other than the Agent to any Subsidiary of the Borrowers Borrower or any Subsidiary to the Borrower, provided 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 of all such Indebtedness shall not to exceed the aggregate amount of $30,000,000 5,000,000 at any time outstandingone time;
(h) unsecured Indebtedness of in connection with any derivative contract provided by a third party to the Borrowers or any Subsidiary that is a Guarantor in respect of Subordinated DebtBorrower;
(i) Indebtedness incurred by the Parent Companies, the Borrower or any of their Subsidiaries under any Capitalized Leases, provided that the principal amount of all such Indebtedness of the Borrowers owing to Parent Companies, the Borrower and their Subsidiaries shall not exceed the aggregate amount of $35,000,000 at 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;one time; and
(j) Indebtedness of any Guarantor to the Borrower or to another Guarantor which is a Person outstanding at the time it is first acquired by any Subsidiary 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 Borrower or in contemplation or in anticipation of such acquisition;
(k) Indebtedness of any of the Borrowers or Borrower to any of their Subsidiaries which are Guarantors incurred in connection Guarantor so long as such Guarantor remains a Guarantor hereunder, has otherwise complied with the issuance provisions 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 §8.14 hereof and remains a Subsidiary 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 Subsidiaries 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, 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 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsectionBorrower.
Appears in 1 contract
Restrictions on Indebtedness. None of the Borrowers willThe 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:
(a) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan Documents;
(b) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) Indebtedness incurred in respect connection with the acquisition after the date hereof of any Derivative Contracts in real or personal property by the ordinary course Borrower or such Subsidiary or under any Capitalized Lease, provided that the aggregate principal amount of businesssuch Indebtedness of the Borrower and its Subsidiaries shall not exceed the aggregate amount of $1,000,000 at any one time;
(d) Existing Senior DebtUnsecured Indebtedness of (i) the Borrower to Cabot Corporation or any of its Subsidiaries which is not otherwise subordinated to the Obligations; (ii) any Subsidiary of the Borrower to Cabot Corporation or any of its Subsidiaries (other than the Borrower or its Subsidiaries); and (iii) the Borrower or any Subsidiary (including, and refundingswithout limitation, replacements Indebtedness consisting of letters of credit) to any other Person (other than Cabot Corporation or refinancings thereof; any of its Subsidiaries) provided that no such refunding or refinancing shall shorten the maturity or weighted average life to maturity or increase the principal aggregate amount of all such Indebtedness under this Section 9.1(d)(iii) does not exceed, in the aggregate, $15,000,000 outstanding at any time and provided, further, that the aggregate amount of all such Indebtedness under this Section 9.1(d) does not exceed, in the Existing Senior Debtaggregate, $30,000,000 outstanding at any time;
(e) Indebtedness of BGI’s domestic Subsidiaries that are Guarantors not the Borrower to exceed $10,000,000Cabot Corporation or any of its Subsidiaries, including provided such Indebtedness outstanding on shall be subordinated to all Obligations pursuant to subordination terms acceptable to the Closing DateAgent in all respects;
(f) Indebtedness of BGI’s foreign Subsidiaries not to exceed in (i) a Subsidiary of 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 Borrower to the proposed incurrence of Indebtedness, will continue Borrower; (ii) Cabot B.V. to be in compliance with all of the covenants in §§9 Cabot Canada Ltd.; and 10 hereof as if the transaction occurred on the first day of the period of measurement(iii) Cabot Canada Ltd. to Cabot B.V.;
(g) Indebtedness of the Borrowers or Borrower to any Subsidiary that of its Subsidiaries which is a Guarantor that constitutes a Synthetic Lease or Capitalized Lease or not otherwise incurred subordinated to finance the acquisition Obligations, provided the aggregate amount of fixed or capital assets (other than pursuant to Sale Leaseback Transactions referred to all such Indebtedness under this Section 9.1(g) does not exceed, in §9.1(n)the aggregate, whether pursuant to a loan, financing lease or otherwise) in an aggregate principal amount not to exceed $30,000,000 15,000,000 outstanding at any time outstandingtime;
(h) other 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 its 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 Subsidiaries of the Borrowers which are Guarantors or to the Borrowers which results from an Investment otherwise 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, 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 supply chain financing in the ordinary course of business this Section 9.1 which is nonrecourse consented to in writing by the Borrowers in an aggregate amount not to exceed $75,000,000; provided that Agent and 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 BorrowersBanks. For the avoidance of doubt, to the parties acknowledge and agree that if extent any Indebtedness permitted in any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of Borrower or any Subsidiary in respect would be permitted by more than one of such Indebtednessthe paragraphs set forth above, the BGI Guaranty election as to which paragraphs such Indebtedness shall not increase fall into shall be the amount decision of Indebtedness deemed incurred under such subsectionthe Borrower.
Appears in 1 contract
Restrictions on Indebtedness. None of the Borrowers will, and The Borrower 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:
(a) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan DocumentsBank;
(b) endorsements for collection, deposit or negotiation and warranties Current liabilities of products or services, in each case the Borrower incurred in the ordinary course of businessbusiness not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(c) Indebtedness in respect of any Derivative Contracts taxes, assessments or other governmental charges 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 ordinary course provisions of businessSection 4.6;
(d) Existing Senior Debt, Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the Borrower shall at the time in good faith be pre-securing an appeal or proceeding for review and refundings, replacements in respect of which a stay of execution shall have been obtained pending such appeal 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 Debtreview;
(e) Indebtedness of BGI’s domestic Subsidiaries that are Guarantors not with respect to exceed $10,000,000, including such Indebtedness outstanding on the Closing Dateworker's compensation awards;
(f) Indebtedness consisting of BGI’s foreign Subsidiaries not to exceed obligations in the aggregate for all respect of deferred compensation agreements, termination benefits and other employee benefit plans, as each such foreign Subsidiaries $100,000,000agreement, including such Indebtedness outstanding benefit and plan is in effect 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 measurementdate hereof;
(g) Unsecured and secured Indebtedness listed on SCHEDULE 6.1(G) hereto as in effect on the date hereof and any refinancing thereof in an amount not in excess of the Borrowers amount outstanding (as to term loans) or any Subsidiary that is a Guarantor that constitutes a Synthetic Lease or Capitalized Lease or otherwise incurred committed (as to finance revolving credit facilities) on 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;date hereof; or
(h) Indebtedness With the prior written consent of Bank, which consent may be granted or withheld in the sole discretion 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)Bank, 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 Subsidiaries 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, 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 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 unsecured 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection.
Appears in 1 contract
Restrictions on Indebtedness. None of the Borrowers will, and will not permit any of its Subsidiaries to, No Borrower shall create, incur, assume, guarantee assume or be or remain liable, contingently or otherwise, with respect suffer to exist any Indebtedness other than:
(a) Indebtedness to existing on the Lenders Closing Date and set forth on Schedule 7.01, including any renewals, extensions, refinancings and replacements thereof so long as the principal amount thereof (plus all accrued interest on such Indebtedness and the Administrative Agent arising under 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 of the Loan Documentsrefinancing) is not increased;
(b) endorsements incurrence of guaranty, suretyship or indemnification obligations in connection with the Borrowers’ performance of services for collection, deposit or negotiation and warranties of products or services, in each case incurred their respective customers in the ordinary course of businesstheir businesses;
(c) Indebtedness in respect of any Derivative Contracts in the ordinary course of businessone Borrower to another Borrower;
(d) Existing Senior Debt, and refundings, replacements Indebtedness of the Borrowers incurred in connection with the acquisition 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 lease of any of equipment or other property by the Existing Senior DebtBorrowers under any Synthetic Lease, Capital Lease or other lease arrangement or purchase money financing;
(e) Indebtedness of BGI’s domestic Subsidiaries that are Guarantors not the Borrowers with respect to exceed $10,000,000, including such Indebtedness outstanding on bonds for closure and post-closure obligations relating to any landfill owned or operated by the Closing DateBorrowers;
(f) Indebtedness of BGI’s foreign Subsidiaries not to exceed the Borrowers in respect of Swap Contracts (including Fuel Derivatives Obligations) entered into in the aggregate ordinary course of business and not 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 measurementspeculative purposes;
(g) Indebtedness of the Borrowers with respect to letters of credit of Persons acquired by the Borrowers; provided, that such letters of credit shall be retired immediately or replaced by Letters of Credit under this Agreement as soon as possible but in any Subsidiary that is a Guarantor that constitutes a Synthetic Lease or Capitalized Lease or otherwise incurred to finance event not later than one hundred twenty (120) days after the acquisition closing 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 outstandingsuch acquisition;
(h) Indebtedness of the Borrowers or any Subsidiary that is a Guarantor in respect of Subordinated DebtIRBs; provided, that (i) such Indebtedness may be secured only to the extent such IRBs are L/C Supported IRBs and (ii) after taking into account all Indebtedness incurred pursuant to this clause (h), the Borrowers on a consolidated basis shall be in pro forma compliance with each of the financial covenants set forth in Section 7.14 (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 previously approved in 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));
(i) other secured 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 other than as permitted pursuant to §9.5.1(gunder other subsections hereof), provided that any such Indebtedness was not created at in excess of $20,000,000 in 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;
(lj) additional Indebtedness other unsecured Indebtedness; provided, that, at the time of incurrence thereof, the Borrowers shall be in pro forma compliance with each of the Borrowers not exceeding $35,000,000 less any Indebtedness incurred under paragraph financial covenants set forth in Section 7.14 (g), in aggregate principal amount at any one time outstanding;
(m) Indebtedness of Subsidiaries using Consolidated EBITDA of the Borrowers which are Guarantors owing to any other Subsidiaries Consolidated Group as of the Borrowers which are Guarantors or last day of the applicable Pro Forma Reference Period (but including any addbacks 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, 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 supply chain financing Consolidated EBITDA previously approved in the ordinary course period following the last day of business which is nonrecourse to the Borrowers in an aggregate amount not to exceed $75,000,000; provided that applicable Pro Forma Reference Period) and Consolidated Total Funded Debt as of the Borrowers are in current compliance with anddate of, and after giving effect to the proposed incurrence of Indebtednessto, will continue to be in compliance such Indebtedness (with all of the covenants in §§9 and 10 hereof such amounts adjusted as if the transaction occurred such Indebtedness was incurred on the first day of the period of measurementapplicable Pro Forma Reference Period));
(pk) 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 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 measurementObligations; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (il) Indebtedness of under the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsectionTerm Loan Agreement.
Appears in 1 contract
Restrictions on Indebtedness. None of The Parent and the Borrowers willBorrower will not, and will not permit any of its their Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan Documentscreated hereunder;
(b) endorsements for collectionIndebtedness existing on the Closing Date which is set forth in SCHEDULE 8.2;
(c) other Indebtedness incurred after the Closing Date (determined on a consolidated basis without duplication in accordance with GAAP) in respect of Capitalized Leases and/or secured by Liens permitted under SECTION 8.3(H), deposit or negotiation and warranties in an aggregate principal amount at any time outstanding not in excess of products or services$2,500,000;
(d) Indebtedness of a Domestic Subsidiary of the Borrower to the Borrower; PROVIDED that, in each case case, such Indebtedness is evidenced by a note which is pledged to the Administrative Agent;
(e) Indebtedness of the Parent or any Subsidiary of the Parent in respect of Derivative Agreements;
(f) Indebtedness of the Parent and its Subsidiaries consisting of (i) the Priority Bank Debt (as defined in the Intercreditor Agreement), and (ii) any refinancings thereof; PROVIDED that the committed amount of such Indebtedness is not increased at the time of such refinancing and such refinancing and the intercreditor arrangements with the holders of such Indebtedness are otherwise on terms and conditions satisfactory to the Administrative Agent; and
(g) Indebtedness of the Parent and its Subsidiaries consisting of the financing of insurance premiums incurred in the ordinary course of business;
(c) 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 Subsidiaries 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, 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 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection.
Appears in 1 contract
Restrictions on Indebtedness. None of Excluding a mortgage, junior to the Borrowers willLender’s mortgage, and when it does not agree to Fund the Expansion (the “Expansion Mortgage” the Borrower 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:
(a) Indebtedness to the Lenders and the Administrative Agent Lender arising under any of the Loan Documents;
(b) current liabilities of the Borrower incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(c) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefore shall not at the time be required to be made in accordance with the provisions of Section 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);
(d) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the Borrower shall at the time in good faith be prosecuting an appeal or proceeding for review and in respect of which a stay of execution shall have been obtained pending such appeal or review;
(e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) 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;and
(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) unsecured 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 Borrower owing to any Subsidiary member of such the Borrower (including the Required Equity Funds), that is a Guarantor which is expressly subordinated and made junior to the prior payment and performance 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 Obligations and evidenced as such by a written instrument containing subordination provisions in an acquisition permitted pursuant to §9.5.1(g), provided that any such Indebtedness was not created at form and substance approved by 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 Subsidiaries 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, 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 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsectionLender.
Appears in 1 contract
Sources: Construction Loan and Security Agreement (Griffin Land & Nurseries Inc)
Restrictions on Indebtedness. None of the Borrowers willThe 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:
(a) Indebtedness owing to the Lenders and the Administrative Agent Agents arising under any of the Loan Documents;
(b) current liabilities of the Borrower or such Subsidiary (including under any operating leases and studio and tower leases) incurred in the ordinary course of business not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(c) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(cd) Indebtedness in respect of (i) judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the Borrower or such Subsidiary (as the case may be) shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review, (ii) final judgments against the Borrower or any Derivative Contracts of its Subsidiaries that in the ordinary course of business;
aggregate at any time do not exceed $5,000,000 and (diii) Existing Senior Debt, and refundings, replacements or refinancings thereof; provided that no such refunding or refinancing claims which are currently being contested in good faith by appropriate proceedings if adequate reserves shall shorten the maturity or weighted average life to maturity or increase the principal amount of any of the Existing Senior Debthave been set aside with respect thereto;
(e) Indebtedness Subordinated Debt; provided that, in the case of BGI’s domestic Subsidiaries that are Guarantors not to exceed $10,000,000the incurrence of Additional Subordinated Debt by the Borrower or such Subsidiary, including (i) the Borrower applies the net cash proceeds of such Indebtedness outstanding on Additional Subordinated Debt in accordance with ss.5.4 and (ii) no Default or Event of Default has occurred and is continuing at the Closing Datetime of the incurrence of such Additional Subordinated Debt or would result after giving effect thereto;
(f) Indebtedness (i) incurred in connection with the acquisition after the date hereof of BGI’s foreign any real or personal property by the Borrower or such Subsidiary or under any Capitalized Lease or (ii) assumed by the Borrower or any of its Subsidiaries not to exceed in connection with a Permitted Acquisition, provided that (x) the aggregate for all such foreign Subsidiaries $100,000,000, including principal amount of such Indebtedness outstanding on of the Closing Date but excluding Borrower and its Subsidiaries shall not exceed the aggregate amount of $75,000,000 at any one time; and (y) the amount of such Indebtedness under does not exceed the Loan Documents; provided that value of the Borrowers property so acquired and (z) with respect to clause (ii) above, the assets securing such Indebtedness are in current compliance with and, after giving effect limited to the proposed incurrence assets so acquired or which secured the Indebtedness at the time it was assumed so long as such liens were not granted or created in anticipation 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 measurementsuch assumption;
(g) Indebtedness in respect of interest rate agreements, swaps or similar arrangements entered into pursuant to ss.10.14 or to protect the Borrowers Borrower 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 from changes 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 outstandinginterest rates;
(h) Indebtedness of existing on the Borrowers or any Subsidiary that is a Guarantor in respect of Subordinated Debt;date hereof and listed and described on Schedule 11.1 hereto; -------- ----
(i) Indebtedness of a Subsidiary of the Borrowers Borrower owing to the Borrower or of the Borrower or any Subsidiary to any wholly-owned 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 thereofBorrower;
(j) Indebtedness in respect of a Person outstanding taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time it is first acquired by any be required to be made in accordance with the provisions of the Borrowers ss.10.8; and
(i) other unsecured Indebtedness in an acquisition permitted pursuant aggregate amount outstanding at any one time not to §9.5.1(g)exceed $25,000,000, provided that any such Indebtedness was not created no Default or Event of Default has occurred and is continuing at the time of or in contemplation or in anticipation the incurrence of such acquisition;
(k) unsecured 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 Subsidiaries 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, 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 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, would result 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsectionthereto.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Emmis Communications Corp)
Restrictions on Indebtedness. None of the Borrowers willEach Loan Party 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:
(a) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan Documents;
(b) 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 §8.8;
(c) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the such Loan Party or such Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review;
(d) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(ce) Indebtedness of Borrower or a Domestic Subsidiary (in respect addition to similar Indebtedness permitted under clause (f) hereof) consisting of any Derivative Contracts short-term trade credit extended to such Person in the ordinary course of business;
(d) Existing Senior Debt, such Person's business in connection with the acquisition of Railcars and refundings, replacements or refinancings thereofother related equipment; provided that no (i) such refunding or refinancing Indebtedness shall shorten not be in existence for more than 365 days after the maturity or weighted average life to maturity or increase occurrence of the transaction giving rise thereto and (ii) the principal amount of any such Indebtedness does not exceed one hundred percent (100%) of the Existing Senior Debt;
(e) Indebtedness purchase price of BGI’s domestic Subsidiaries that are Guarantors not to exceed $10,000,000, including such Indebtedness outstanding on the Closing DateRailcars and related equipment;
(f) Indebtedness of BGI’s foreign Subsidiaries not to exceed the Borrower or a Domestic Subsidiary incurred in connection with the acquisition or lease after the date hereof of any real or personal property (including Railcars) by the Borrower or a Domestic Subsidiary or under any Capitalized Leases, provided that (i) the aggregate for all principal amount of such foreign Indebtedness of the Borrower and its Domestic Subsidiaries shall not exceed One Hundred Million Dollars ($100,000,000) outstanding at any one time, including (ii) the principal amount of 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 secured by or relating to the proposed incurrence lease of Indebtedness, will continue to be in compliance with all any particular property (including Railcars) shall not exceed one hundred percent (100%) of the covenants purchase price of such property, and (iii) the Administrative Agent, the Borrower, and the holder of such other Indebtedness have entered into an intercreditor agreement in accordance with §§9 and 10 hereof as if 14.15 with respect to the transaction occurred on the first day rights of the period of measurementsuch creditor groups;
(g) Indebtedness of incurred from time to time under the Borrowers or any Subsidiary that is a Guarantor that constitutes a Synthetic Lease or Capitalized Lease or otherwise incurred to finance Senior Revolving Credit Facility and other Indebtedness existing on 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 outstandingRestatement Date and listed and described on Schedule 9.1 hereto;
(h) Indebtedness of CAI and its Subsidiaries (other than the Borrowers Borrower and its Domestic Subsidiaries) (in addition to similar Indebtedness permitted under clause (j) hereof) consisting of short-term trade credit extended to CAI or any such Subsidiary in the ordinary course of such Person's business in connection with the acquisition of Containers and other related equipment; provided that is a Guarantor (i) such Indebtedness shall not be in respect existence for more than 365 days after the occurrence of Subordinated Debtthe transaction giving rise thereto and (ii) the principal amount of such Indebtedness does not exceed one hundred percent (100%) of the purchase price of such Containers and related equipment;
(i) any renewal or refinancing of any Indebtedness permitted under this §9.1; provided that any such refinancing or renewal does not independently violate any restriction, basket, limitation or other provision of 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 thereofthis §9;
(j) Indebtedness (in addition to similar Indebtedness permitted under clause (h) hereof) incurred in connection with the acquisition or lease after the Restatement Date of any real or personal property by CAI or a Person outstanding at Subsidiary (other than the time it is first acquired by Borrower) or under any of the Borrowers in an acquisition permitted pursuant to §9.5.1(g)Capitalized Leases, provided that any (i) the aggregate principal amount of such Indebtedness was of CAI and its Subsidiaries (other than the Borrower) for non-income producing properties shall not created exceed $20,000,000 outstanding at any one time, (ii) such Indebtedness secured by income producing properties complies with the time provisions of or in contemplation or in anticipation clause (p) hereof and (iii) the principal amount of such acquisitionIndebtedness secured by or relating to the lease of any particular property shall not exceed 100% of the purchase price of such property;
(k) Indebtedness in respect 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 outstandingInterest Rate Protection Agreements;
(l) additional Indebtedness consisting of the Borrowers not exceeding $35,000,000 less any Indebtedness incurred under paragraph (gInvestments permitted by §9.3(e), in aggregate principal amount at any one time outstanding;
(m) Indebtedness consisting of Subsidiaries obligations (contingent or otherwise) of CAI or any Subsidiary existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the Borrowers which are Guarantors owing 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 any other Subsidiaries of the Borrowers which are Guarantors or make payments on outstanding transactions to the Borrowers which results from an Investment permitted under §9.3(g) or (i)defaulting party;
(n) Indebtedness of BGI and its domestic Subsidiaries which are Guarantors incurred by a Securitization Entity in connection with Sale Leaseback Transactionsa Permitted Securitization provided that (A) in the case of a Permitted Securitization of Container assets, the trustee (or other representative of the lenders or investors in an aggregate principal amount not such transaction) has entered into the intercreditor agreement for such Container assets referred to exceed $25,000,000 at any time outstandingin the Senior Revolving Credit Facility, and (B) in connection with a Permitted Securitization of Railcar assets, the trustee or other lender representative have entered into the intercreditor agreement referred to in Section 14.15;
(o) other Indebtedness of BGI the Borrower incurred when no Default or Event of Default shall have occurred and its domestic be continuing (or would result from the incurrence of such Indebtedness) consisting of:
(i) Indebtedness that is not secured; or
(ii) Indebtedness that is secured, so long as, if any such secured Indebtedness incurred by the Borrower or a Domestic Subsidiary of the Borrower individually or in the aggregate exceeds One Hundred Million Dollars ($100,000,000), then the Administrative Agent, the Borrower, the Domestic Subsidiaries which of the Borrower, the holder(s) of such Indebtedness and other interested creditors shall have entered into an intercreditor agreement in accordance with §14.15 with respect to the rights of such creditor groups in the respective collateral pools for this facility and all other facilities; provided that, the proceeds of such secured or unsecured Indebtedness are Guarantors used solely for (A) repayments of Revolving Credit Loans pursuant to §3.3, or (B) the acquisition of railcar assets and fees, costs and expenses incurred in connection with accounts receivable securitizations on customary terms the acquisition of railcar assets or supply chain financing in (C) for the ordinary course refinancing 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 any such 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) other Indebtedness of CAI and its Subsidiaries (other than the Borrower or any Subsidiary of the Borrower) for which neither the Borrower or any Subsidiary of the Borrower shall be a guarantor, co-borrower or co-obligor (except for the guaranty by the Borrower of the Senior Revolving Credit Agreement) consisting of :
(i) Indebtedness that is unsecured;
(ii) Indebtedness that is secured; provided that any such secured Indebtedness either: (x) is secured by assets that are not commingled with the collateral for the Senior Revolving Credit Agreement; (y) if secured by assets that are commingled with the collateral for the Senior Revolving Credit Agreement, is subject to the intercreditor agreement described in the Senior Revolving Credit Agreement; or
(iii) other secured Indebtedness not to exceed $60,000,000 in the aggregate; provided that, both before and immediately after any such secured or unsecured Indebtedness is incurred, no default or event of BGI default under the Senior Revolving Credit Agreement shall have occurred and its domestic Subsidiaries that be continuing and, with respect to Indebtedness described in §9.1(p)(i), §9.1(p)(ii), and §9.1(p)(iii), the proceeds of such Indebtedness are Guarantors in respect used solely for (A) repayments of earnout payments revolving credit loans pursuant to under the Senior Revolving Credit Agreement, (B) the acquisition of assets and fees, costs and expenses incurred in connection with the acquisition of assets or (C) for the refinancing of any acquisition permitted under §9.5; provided that the Borrowers are in current compliance with and, after giving effect to the proposed incurrence of such 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; and.
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of either: (i) incurred by CAI consisting of one or more guaranties of Indebtedness of the Borrowers (under paragraphs (j) Borrower; or (l)) secured by Liens plus (ii) Indebtedness incurred by Subsidiaries of CAI (other than Borrower or a Subsidiary of the Borrowers’ Subsidiaries (under paragraphs (e), (f), (j), (lBorrower) consisting of one or (o)) shall not exceed fifteen percent (15%) more guaranties 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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such CAI Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection.
Appears in 1 contract
Sources: Revolving Credit Agreement (CAI International, Inc.)
Restrictions on Indebtedness. None The Borrower will not, nor will it permit any Subsidiary of the Borrowers will, and will not permit any of its Subsidiaries Borrower to, createissue, 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:
(a) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan DocumentsObligations;
(b) endorsements for collection, deposit or negotiation and warranties Non-Recourse Indebtedness of products or services, in each case incurred in the ordinary course of businessany Project Finance Subsidiary;
(c) Indebtedness in respect of any Derivative Contracts in so long as 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 Borrower would be in compliance with all Section 7.17 hereof (calculated as of the covenants in §§9 date of, and 10 hereof as if after giving effect to, the transaction occurred on the first day incurrence of the period of measurement;
such Indebtedness), secured Indebtedness (g) excluding Indebtedness of the Borrowers type described in (e) below but including the pledge of stock or similar equity interest of any Project Finance Subsidiary or any Subsidiary that which is a Guarantor that constitutes a Synthetic Lease an entity whose sole purpose and extent of business activities is to own the stock or Capitalized Lease similar equity interest of such Project Finance Subsidiary) (A) set forth on Schedule 7.15(c) hereto, (B)(i) of BHP or otherwise CLF&P, (ii) evidencing the deferred purchase price of newly acquired property or 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 personal property of the Borrowers Borrower or any a 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 Subsidiaries 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, 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 supply chain financing 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 performance of tenders, statutory obligations, bids, leases or other similar obligations (other than for 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 nonrecourse issued or incurred by Black Hills Utility Holdings 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 Borrowers Termination Date, as extended from time to time in accordance with the terms hereof, and is not in excess of an aggregate amount not equal to exceed fifty percent (50%) of the net book value of the property, plant and equipment of Black Hills Utility Holdings (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 $75,000,000; provided that 25,000,000 and any modification to such Indebtedness;
(d) so long as the Borrowers are in current compliance with and, after giving effect to the proposed incurrence of Indebtedness, will continue to Borrower would be in compliance with all Section 7.17 hereof (calculated as of the covenants in §§9 date of, and 10 hereof as if after giving effect to, the transaction occurred on the first day incurrence of such Indebtedness), other Indebtedness (excluding Indebtedness of the period type described in (e) below) which is unsecured and either junior in right of measurementpayment to the Obligations or 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 any documentation evidencing such Indebtedness in excess of $25,000,000 and any modification to such Indebtedness;
(pe) unsecured 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) if the Borrower consummates the Acquisition, the following Indebtedness of BGI and its domestic Subsidiaries Target, Target LLC or any of their respective Affiliates that are Guarantors in respect of earnout payments incurred acquired in connection with any acquisition permitted under §9.5; provided the Acquisition: (i) up to $95,000,000 principal amount of 3.98% Senior Secured Notes, Series A, due September 29, 2019, of Target issued pursuant to that certain Note Purchase Agreement dated September 29, 2014 among Target and each of the Borrowers are in current compliance with andpurchasers party thereto, (ii) up to $325,000,000 principal amount of 5.90% Senior Notes due 2017 of Target LLC issued pursuant to that certain Indenture dated as of April 16, 2007 between Target LLC and U.S. Bank National Association, as trustee, and (iii) up to $300,000,000 of other secured or unsecured Indebtedness incurred after giving effect the date hereof and prior to the proposed incurrence of Indebtedness, will continue to be in compliance with all consummation of the covenants in §§9 and 10 hereof as if the transaction occurred on the first day of the period of measurementAcquisition;
(g) [Reserved];
(h) Permitted Derivative Obligations; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers pursuant to Long-Term Guaranties. Indebtedness shall only be permitted under (under paragraphs (j) or (ld)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs , (e), (fh), and (ji) above to the extent such Indebtedness will have a priority of payment with the Obligations which is no greater than pari passu (and with respect to clause (e), (l) or (oto the extent such Indebtedness is subordinated to the Obligations as set forth in such clause)) 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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection.
Appears in 1 contract
Restrictions on Indebtedness. None of the Borrowers will, and The Transaction Parties 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:
(a) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan Documents;
(b) current liabilities of the Transaction Parties incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(c) 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;
(d) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) 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 the Parent Borrower 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 connection with and, after giving effect to the proposed incurrence of Indebtedness, will continue to be in compliance with all of the covenants in §§9 completion 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) similar guaranties 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 not in excess of the Borrowers which are Guarantors owing to any other Subsidiaries 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, 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 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount greater of (i) Indebtedness of the Borrowers (under paragraphs (j) $175,000,000 or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (f), (j), (l) or (o)) shall not exceed fifteen percent (15%) of Consolidated Total Assets the Gross Asset Value;
(g) other Indebtedness of the BorrowersParent Borrower, determined as the REIT or any of their Subsidiaries (other than any Pool Owner), provided that none of such Persons shall incur any of the end Indebtedness described in this §8.1(g) unless it shall have provided to the Agent prior written notice 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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect proposed incurrence of such Indebtedness, a statement that the BGI Guaranty shall borrowing will not increase cause a Default or Event of Default and a Compliance Certificate demonstrating that the amount Loan Parties will be in compliance with its covenants referred to therein after giving effect to the incurrence of Indebtedness deemed incurred under such subsection.Indebtedness;
(h) Derivatives Contracts (including Approved Derivatives Contracts);
(i) the 2014 Term Loan Agreement; and
Appears in 1 contract
Restrictions on Indebtedness. None of the Borrowers willThe 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:
(a) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan Documents;
(b) 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;
(c) Indebtedness in respect of any Derivative Contracts letters of credit, bankers’ acceptances, bank guaranties, surety bonds and similar instruments issued in the ordinary course of business;
(d) Existing Senior Debt, and refundings, replacements Indebtedness of the Borrower or refinancings thereofany Subsidiary (other than any Domestic Subsidiary) in respect of Swap Contracts; provided that no such refunding Swap Contracts are (or refinancing shall shorten were) entered into by the maturity Borrower or weighted average life to maturity such Subsidiary for the purpose of mitigating risks associated with fluctuations in interest rates, commodity prices or increase the principal amount of any of the Existing Senior Debtforeign exchange rates and not for speculative purposes;
(e) Indebtedness of BGI’s domestic Subsidiaries that are Guarantors not to exceed $10,000,000, including such Indebtedness outstanding existing on the Closing DateDate and listed and described on Schedule 7.1 hereto or any refinancing thereof on substantially similar terms as the Indebtedness being refinanced;
(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 measurementSubordinated Debt;
(g) Indebtedness of the Borrowers or any Subsidiary that is a Guarantor that constitutes a Synthetic Lease or obligations under 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 outstandingLeases;
(h) Indebtedness of the Borrowers or any Subsidiary that is a Guarantor in respect of Subordinated Debtintercompany 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 acquisition after the Closing Date of any real or personal property by the Borrowers owing to Borrower or any Subsidiary of such the 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 thereofas contemplated by §7.2(ix) hereof;
(j) Indebtedness of secured by a Person outstanding at the time it is first acquired by any lien on Real Estate of the Borrowers in an acquisition Borrower or its Subsidiaries; provided that the aggregate amount of Indebtedness permitted pursuant to this §9.5.1(g)7.1(j) shall not, provided that at any time, exceed the fair market value of the Real Estate securing such Indebtedness was not created at the time of or in contemplation or in anticipation of such acquisitionIndebtedness;
(k) other Indebtedness of any the Borrower, provided that immediately after such incurrence of the Borrowers Indebtedness, and after giving effect thereto on a pro forma basis, no Default or any Event 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 outstandingDefault shall then exist;
(l) additional other Indebtedness of the Borrowers 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 (without duplication) of the Domestic Subsidiaries of the Borrower permitted under this clause (o) shall not exceeding $35,000,000 less any exceed 15% of the Stockholders’ Equity of the Borrower at the time such Indebtedness incurred under paragraph (g), in aggregate principal amount at any one time outstandingis incurred;
(m) Indebtedness consisting of Subsidiaries of the Borrowers which are Guarantors owing to any other Subsidiaries of the Borrowers which are Guarantors or to the Borrowers which results from an Investment Investments permitted under §9.3(g7.3(m) or (i)hereof;
(n) Indebtedness of BGI and its domestic Subsidiaries which are Guarantors incurred in connection with Sale Leaseback Transactions, in an aggregate principal amount not to exceed $25,000,000 payable 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 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 election of the covenants in §§9 and 10 hereof as if Borrower by the transaction occurred on the first day issuance of the period of measurementBorrower’s Capital Stock;
(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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection.
Appears in 1 contract
Sources: Credit Agreement (Staples Inc)
Restrictions on Indebtedness. None of the Borrowers will, and 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:
(a) Indebtedness to the Lenders Lenders, the Agents and the Administrative Agent Issuing Bank arising under any of the Loan Documents;
(b) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) Indebtedness incurred in respect connection with the acquisition after the Closing Date of any Derivative Contracts Property (and in any event not more than ninety (90) days from the ordinary course date of businesssuch acquisition) by such Borrower or such Subsidiary as contemplated by ss. 9.2(ix);
(d) Existing Senior Debt, and refundings, replacements obligations under 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 guaranties of any of the Existing Senior DebtCapitalized Leases;
(e) Indebtedness in respect of BGI’s domestic Subsidiaries that are Guarantors Hedging Agreements entered into for hedging purposes only and not to exceed $10,000,000, including such Indebtedness outstanding on the Closing Datefor speculation;
(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 existing on the Closing Date but excluding and listed and described on Schedule 9.1 hereto including any extensions or refinancings thereof on substantially similar terms as the Indebtedness under being refinanced and provided there is no increase in 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 measurementamount 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, -89- if no Default or Event of Default shall have occurred and be continuing at the Borrowers or time such Indebtedness is incurred, 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 outstandingInvestments;
(h) unsecured Indebtedness of the Borrowers BGI to, or any Subsidiary that is a Guarantor in respect of Subordinated Debtobligations 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 the Borrowers owing Foreign Subsidiaries (other than Indebtedness permitted under clause (g) hereof) with an aggregate principal Dollar Equivalent amount outstanding not 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 thereofexceed $30,000,000;
(j) Indebtedness of a Person outstanding at the time it is first acquired by any of the Borrowers in an acquisition respect of the Existing Synthetic Lease Facility and the New Synthetic Lease Facility, provided, however, that the aggregate amount of Indebtedness permitted pursuant to §9.5.1(g)thereunder (i) on and after the Closing Date through October 31, provided that any such Indebtedness was 2002 shall not created at the time of or in contemplation or in anticipation of such acquisitionexceed $100,000,000 and (ii) on and after November 1, 2002 shall not exceed $75,000,000;
(k) Indebtedness in respect of any Permitted Joint Venture Activity, provided that no Default or Event of the Borrowers Default has occurred and is continuing 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 outstandingwould result therefrom;
(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 Subsidiaries 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, 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 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 Borrowers are in current compliance with and, after giving effect to the proposed incurrence private placement offering of Indebtedness, will continue debt securities to be made after the Closing Date 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 measurementan aggregate principal amount outstanding not to exceed $50,000,000 at any time; and
(qm) unsecured Indebtedness of BGI and its domestic Domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 addition to the proposed incurrence of Indebtedness, will continue Indebtedness otherwise permitted by clause (a) 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (f), (j), (l) or (o)) shall above with an aggregate principal Dollar Equivalent amount outstanding not to exceed fifteen percent (15%) 20% of Consolidated Total Assets of the Borrowers, Tangible Net Worth (determined as of the end last day of the then Fiscal Quarter most recently completed fiscal year ended), provided that at the time of the Borrowers. For the avoidance of doubt, the parties acknowledge and agree that if Indebtedness permitted in any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect incurrence of such Indebtedness, the BGI Guaranty shall not increase the amount Indebtedness no Default or Event of Indebtedness deemed incurred under such subsectionDefault has occurred and is continuing or would result therefrom.
Appears in 1 contract
Sources: Multicurrency Revolving Credit Agreement (Borders Group Inc)
Restrictions on Indebtedness. None of the Borrowers willThe 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:
(a) Indebtedness owing to the Lenders and the Administrative Agent Agents arising under any of the Loan Documents;
(b) current liabilities of the Borrower or such Subsidiary (including under any operating leases and studio and tower leases) incurred in the ordinary course of business not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(c) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(cd) Indebtedness in respect of (i) judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the Borrower or such Subsidiary (as the case may be) shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review, (ii) final judgments against the Borrower or any Derivative Contracts of its Subsidiaries that in the ordinary course of business;
aggregate at any time do not exceed $5,000,000 and (diii) Existing Senior Debt, and refundings, replacements or refinancings thereof; provided that no such refunding or refinancing claims which are currently being contested in good faith by appropriate proceedings if adequate reserves shall shorten the maturity or weighted average life to maturity or increase the principal amount of any of the Existing Senior Debthave been set aside with respect thereto;
(e) Indebtedness Subordinated Debt, provided that, in the case of BGI’s domestic Subsidiaries that are Guarantors not to exceed $10,000,000the incurrence of Additional Subordinated Debt by the Borrower or any Subsidiary, including (i) the net cash proceeds of such Indebtedness outstanding on Additional Subordinated Debt shall be applied in accordance with §4.4 and (ii) no Default or Event of Default has occurred and is continuing at the Closing Datetime of the incurrence of such Additional Subordinated Debt or would result after giving effect thereto;
(f) Indebtedness (i) incurred in connection with, and within 180 days of, the acquisition after the date hereof of BGI’s foreign any real or personal property by the Borrower or such Subsidiary or under any Capitalized Lease or (ii) assumed by the Borrower or any of its Subsidiaries not to exceed in connection with a Permitted Acquisition, provided that (x) the aggregate for all such foreign Subsidiaries $100,000,000, including principal amount of such Indebtedness outstanding on of the Closing Date but excluding Borrower and its Subsidiaries shall not exceed the aggregate amount of $35,000,000 at any one time; (y) the amount of such Indebtedness under does not exceed the Loan Documentsfair market value of the property so acquired; provided that and (z) with respect to clause (ii) above, the Borrowers assets securing such Indebtedness are in current compliance with and, after giving effect limited to the proposed incurrence assets so acquired or which secured the Indebtedness at the time it was assumed so long as such liens were not granted or created in anticipation 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 measurementsuch assumption;
(g) Indebtedness in respect of interest rate agreements (whether from fixed to floating or from floating to fixed), swaps or similar arrangements entered into pursuant to §9.14 or designed to manage interest rates or interest rate risk in connection with this Credit Agreement, the Borrowers Refinancing Notes or any Subsidiary that is a Guarantor that constitutes a Synthetic Lease other Indebtedness for borrowed money evidenced by bonds, debentures or Capitalized Lease other similar instruments owed by the Borrower or otherwise incurred to finance the acquisition any 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 outstandingits Subsidiaries;
(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 Subsidiaries 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, 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 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 existing on the first day of the period of measurementdate hereof and listed and described on Schedule 10.1 hereto;
(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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Emmis Communications Corp)
Restrictions on Indebtedness. None of the Borrowers willThe 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:
(a) Indebtedness to the Lenders Banks and the Administrative Agent arising under any of the Loan Documents;
(b) current liabilities of the Borrower or such Subsidiary incurred in the ordinary course of business not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(c) 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 8.8;
(d) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the Borrower or such Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review;
(e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) 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 consisting of BGI’s foreign Subsidiaries Rental Obligations under operating leases with aggregate payments due in any year not to exceed in the aggregate for all such foreign Subsidiaries excess of $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 measurement12,000,000;
(g) Indebtedness consisting of contingent liabilities in respect of litigation against the Borrower so long as such Indebtedness would not be required by the Borrower's independent public accountants to be included in the footnotes to the financial statements delivered pursuant to Section 8.4(a) or the reserves for which required to be established on the books 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 Borrower are not in excess 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 outstanding5,000,000;
(h) Indebtedness of the Borrowers Borrower and its Subsidiaries incurred in connection with the acquisition after the date hereof of personal property by the Borrower or any Subsidiary Subsidiary; PROVIDED that is a Guarantor the principal amount of such Indebtedness shall not exceed in respect any case 90% of Subordinated Debtthe cost, to the Borrower or such Subsidiary, of the personal property so acquired, and PROVIDED, FURTHER, that the aggregate principal amount of such Indebtedness outstanding shall not exceed $10,000,000 at any time;
(i) Indebtedness under the First Mortgage Notes not exceeding the aggregate principal amount 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$200,000,000;
(j) Indebtedness of a Person outstanding at existing on 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 acquisitiondate hereof and listed and described on SCHEDULE 9.1 hereto;
(k) Indebtedness of any a Subsidiary of the Borrowers or any of their Subsidiaries which are Guarantors incurred Borrower to the Borrower not exceeding $5,000,000 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 outstandingaggregate;
(l) additional Indebtedness with respect to surety bonds required in the ordinary course of business of the Borrowers Borrower and its Subsidiaries, PROVIDED that such Indebtedness shall not exceeding $35,000,000 less any Indebtedness incurred under paragraph (g), in aggregate principal amount at any one time outstandingexceed $3,000,000 in the aggregate;
(m) Indebtedness consisting of Subsidiaries of the Borrowers which are Guarantors owing contingent liabilities with respect to any other Subsidiaries of the Borrowers which are Guarantors or Guaranteed Pension Plans to the Borrowers which results from an Investment extent permitted under §9.3(g) or (i)Section 9.9;
(n) Indebtedness of BGI and its domestic Subsidiaries which are Guarantors incurred in connection under any interest rate swap, cap, collar or similar arrangements or foreign currency exchange transactions with Sale Leaseback Transactions, in an aggregate principal amount not respect to exceed $25,000,000 at any time outstandingIndebtedness under the Revolving Credit Notes;
(o) Indebtedness of BGI and its domestic Subsidiaries which are Guarantors incurred in connection with accounts receivable securitizations on customary terms or supply chain financing not otherwise permitted by this Section 9.1 not exceeding $10,000,000 in the ordinary course of business which is nonrecourse to the Borrowers in an aggregate amount not to exceed $75,000,000aggregate; 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 the Borrower to the Ohio Water Development Authority in respect of earnout payments incurred in connection with any acquisition permitted under §9.5; 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness up to $25,000,000 aggregate principal amount of Solid Waste Revenue Bonds issued by the Ohio Water Development Authority and bearing interest at a rate not to exceed 8.5 percent per annum and having a maturity of not less than 20 years, in connection with the acquisition by the Borrower of certain solid waste facilities to be located at the Borrower's continuous cast direct billet process plant in Canton, Ohio, and incurred under the terms of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus Loan Agreement, Note and Indenture in the form delivered to the Banks prior to the date hereof, and (ii) Indebtedness up to $55,000,000 aggregate principal amount of State of Ohio Solid Waste Revenue Bonds, Series 1996 issued by the Ohio Water Development Authority and bearing interest at a rate not to exceed 10.0 percent per annum and having a maturity of not less than 15 years, in connection with the financing and refinancing of a portion of the Borrowers’ Subsidiaries costs of the Borrower's solid waste disposal facilities to be installed in its Canton, Ohio plant, and incurred under the terms of the Loan Agreement, Project Note and Indenture, dated as of June 1, 1996 and in the form delivered to the Banks prior to the date hereof, and in the case of each Loan Agreement, Note and Indenture referred to in each of the clauses (under paragraphs i) and (e)ii) above, (f), (j), (l) or (o)) such documents shall not exceed fifteen percent (15%) of Consolidated Total Assets be amended in a manner affecting the rights or obligations of the Borrowers, determined as Borrower thereunder without the consent of the end Majority Banks, which consent, in the case of amendments which do not affect maturity, interest rate, payment terms, tighten covenants, create additional obligations on the then most recently completed fiscal year of Borrower or require the Borrowers. For the avoidance of doubt, the parties acknowledge and agree that if Indebtedness permitted in any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations provision of any Subsidiary in respect of such Indebtednesscollateral security or guaranty, the BGI Guaranty shall will not increase the amount of Indebtedness deemed incurred under such subsectionunreasonably be withheld.
Appears in 1 contract
Sources: Revolving Credit Agreement (Republic Engineered Steels Inc)
Restrictions on Indebtedness. None of the Borrowers willThe 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:
(a) Indebtedness to the Senior Lenders arising under any of the Senior Loan Documents;
(b) Indebtedness to the Lenders and the Administrative Agent Agents arising under any of the Loan Documents;
(bc) current liabilities of the Borrower or such Subsidiary incurred in the ordinary course of business not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(d) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of Section 8.8;
(e) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the Borrower or such Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review;
(f) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(cg) Indebtedness in respect of any Derivative Contracts in existing on the ordinary course of businessdate hereof and listed and described on SCHEDULE 9.1 hereto;
(dh) Existing Senior DebtIndebtedness owed by the Borrower or any of its Subsidiaries to trade vendors, and refundings, replacements or refinancings thereof; provided that no such refunding or refinancing shall shorten in the maturity or weighted average life to maturity or increase the principal amount of any the cost to the Borrower or such Subsidiary of inventory held on consignment from such trade vendors, including in connection with and pursuant to the Existing Senior Debt;Trade Vendor Extension Agreement; and
(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;
(gi) 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 (Borrower and its Subsidiaries other than pursuant to Sale Leaseback Transactions referred to that permitted elsewhere in §9.1(n), whether pursuant to a loan, financing lease or otherwise) this Section 9.1 in an aggregate principal amount not to exceed $30,000,000 2,000,000 at any time outstanding;
(h) Indebtedness of the Borrowers or any Subsidiary ; provided that is a Guarantor in respect of Subordinated Debt;
(i) the Net Proceeds from such Indebtedness are applied in accordance with Section 5.4.5 hereof and (ii) no Default or Event of the Borrowers owing to any Subsidiary of such Borrower that Default has occurred and 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 continuing 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 is 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 Subsidiaries 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, 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 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, none would exist after giving effect to thereto; PROVIDED, HOWEVER, the proposed incurrence Borrower will not, and will not permit any of Indebtednessits Subsidiaries to, will continue to be engage in compliance with all any form 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors"off balance sheet" financing, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, in respect the lease of convertible notes, with a maturity date later than any assets by the Maturity Date; 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) Borrower or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees Subsidiaries as lessee under any synthetic lease referred to in clause (vi) of the obligations definition of any Subsidiary in respect of such the term "Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection."
Appears in 1 contract
Sources: Intercreditor Agreement (Prentice Capital Management, LP)
Restrictions on Indebtedness. None of The Borrower will not, nor will ---------------------------- the Borrowers will, and will not Borrower 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:
(a) Indebtedness to the Lenders Banks and the Administrative Agent arising under any of the Loan Documents;
(b) Indebtedness to suppliers in respect of long term supply contracts consistent with industry practices;
(c) 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 (S)9.8;
(d) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the Borrower or such Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review;
(e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) 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 evidenced by the Old Notes or the Senior Notes (including without limitation any guarantees of BGI’s foreign such Senior Notes by 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 which 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 measurementGuarantors);
(g) obligations of the Borrower and its Subsidiaries under Capitalized Leases; provided that the aggregate principal amount of -------- all such 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 Borrower and its Subsidiaries permitted pursuant to Sale Leaseback Transactions referred to in §9.1(n), whether pursuant to a loan, financing lease or otherwisethis (S)10.1(g) in an shall not exceed the aggregate principal amount not to exceed of $30,000,000 5,000,000 at any time outstandingone time;
(h) Indebtedness existing on the date hereof and listed and described on Schedule 10.1 hereto, including the remaining unamortized -------- ---- portion of the Borrowers or any Subsidiary that is a Guarantor in respect original issue discount of Subordinated Debtsuch Indebtedness;
(i) Indebtedness of the Borrowers owing to any a Subsidiary of such the Borrower that which is a Guarantor existing on the Closing Date to the Borrower or another Subsidiary of the Borrower 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 Subsidiaries 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, 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 supply chain financing in the ordinary course of business which is nonrecourse to the Borrowers in an aggregate amount not to exceed $75,000,000Guarantor; provided that the Borrowers -------- same are evidenced by promissory notes, leases or contracts in current compliance with and, after giving effect form and substance satisfactory to the proposed incurrence of Indebtedness, will continue Agent which are pledged to be in compliance with all the Agent for the benefit of the covenants in §§9 and 10 hereof as if the transaction occurred on the first day of the period of measurementBanks or evidenced only by open account;
(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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Petro Stopping Centers L P)
Restrictions on Indebtedness. None of Neither the Borrowers will, and will not permit Borrower nor any of its Subsidiaries toshall 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 to the Lenders and the Administrative Agent arising under any of this Agreement or the other Loan Documents;
(bi) endorsements for collection, deposit Indebtedness incurred by the Borrower or negotiation and warranties of products any Subsidiary with respect to any suretyship or services, in each case performance bond incurred in the ordinary course of its business, and undrawn landfill closure bonds; and
(ii) Guarantees of any of its Subsidiaries' obligations to governmental authorities in lieu of the posting of any landfill closure bonds;
(c) Unsecured Indebtedness in respect of the Borrower (and any Derivative Contracts in guarantee thereof by the ordinary course Guarantor), including commercial paper and the Five Year Revolving Credit Facility, which is pari passu or subordinated to the Obligations; provided that there does not exist 59 -53- a Default or Event of businessDefault at the time of the incurrence of such Indebtedness and no Default or Event of Default would be created by the incurrence of such Indebtedness;
(d) Existing Senior DebtIndebtedness of the Guarantor and the Borrower's Subsidiaries listed in Schedule 9.1(d) and any extension, renewal or refinancing by the Guarantor or such Subsidiary of 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 Guarantor or such Subsidiary; and
(i) Other Indebtedness of the Borrower's Subsidiaries (other than of the Guarantor), (ii) secured Indebtedness of the Borrower, (iii) Indebtedness with respect to drawn landfill closure bonds, 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;
(eiv) Indebtedness of BGI’s domestic Subsidiaries that are Guarantors not with respect 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 DocumentsPermitted Receivables Transactions; 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 Subsidiaries 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, 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 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) all such Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (f), (j), (l) or (o)in this Section 9.1(e) shall not exceed fifteen percent (15%) % of Consolidated Total Tangible 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 at any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsectiontime.
Appears in 1 contract
Restrictions on Indebtedness. None The Guarantor will not (other than solely as a result of its status as a general partner of the Borrowers willBorrower) 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:
(a) Indebtedness to the Lenders and the Administrative Agent Banks arising under any of the Loan Documents;
(b) current liabilities of the Borrower or its Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(c) 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;
(d) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the Borrower shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review;
(e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(cf) subject to the provisions of Section 9, Non-recourse Indebtedness in respect of the Borrower or any Derivative Contracts in the ordinary course of business;
(d) Existing Senior Debtits Subsidiaries, and refundings, replacements or refinancings thereof; provided that no such refunding or refinancing shall shorten neither the maturity or weighted average life to maturity or increase the principal amount of Borrower nor any of its Subsidiaries shall incur any Non-recourse Indebtedness unless the Existing Senior Debt;
(e) Indebtedness Borrower shall have provided to the Banks a statement that no Default or Event 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 Default exists and a Compliance Certificate demonstrating that the Borrowers are Borrower will be in current compliance with and, the covenants referred to therein after giving effect to the proposed incurrence of such incurrence, and environmental indemnities and customary exceptions to exculpatory language shall be permitted in any such Non-recourse 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 in respect of the Borrowers 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 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(ne), 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) subject to the provisions of Section 9, other unsecured recourse 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 its 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 outstanding principal amount not to exceed $15,000,000 at any time outstanding;
(lexcluding the Obligations) 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 Subsidiaries 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, 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 supply chain financing in the ordinary course of business which is nonrecourse to the Borrowers in an aggregate amount not to exceed $75,000,0002,500,000.00; provided that neither 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or Borrower nor any of its Subsidiaries, 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 BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection.a
Appears in 1 contract
Sources: Unsecured Term Loan Agreement (Ramco Gershenson Properties Trust)
Restrictions on Indebtedness. None of the 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:
(a) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan Documents;
(b) current liabilities of the Borrowers incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(c) 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;
(d) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) 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 the Parent Borrower 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 connection with and, after giving effect to the proposed incurrence of Indebtedness, will continue to be in compliance with all of the covenants in §§9 completion 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) similar guaranties 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 not in excess of the Borrowers which are Guarantors owing to any other Subsidiaries 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, 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 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount greater of (i) Indebtedness of the Borrowers (under paragraphs (j) $175,000,000 or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (f), (j), (l) or (o)) shall not exceed fifteen percent (15%) of Consolidated Total Assets the Gross Asset Value; and
(g) Other Indebtedness of the BorrowersParent Borrower, determined as the REIT or any of their Subsidiaries (other than any Subsidiary Borrower), provided that none of such Persons shall incur any of the end Indebtedness described in this §8.1(g) unless it shall have provided to the Agent prior written notice 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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect proposed incurrence of such Indebtedness, a statement that the BGI Guaranty borrowing will not cause a Default or Event of Default and a Compliance Certificate demonstrating that the Borrowers will be in compliance with its covenants referred to therein after giving effect to the incurrence of such Indebtedness. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(g) above shall have any of the Mortgaged Properties 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 (provided that the foregoing shall not increase preclude Subsidiaries of the amount Borrowers (other than a Subsidiary Borrower) to incur Indebtedness subject to the terms of this §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 deemed incurred under such subsection(including, without limitation, pursuant to any conditional or limited guaranty or indemnity agreement creating liability with respect to usual and customary exclusions from the non-recourse limitations governing the Non-Recourse Indebtedness of any Person, or otherwise) other than Indebtedness described in §§8.1(a)-(g) above.
Appears in 1 contract
Restrictions on Indebtedness. None The Parent and each of the Borrowers willwill not, and the Parent will not permit any of its other Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders Banks and the Administrative Agent arising under any of the Loan Documents;
(b) Indebtedness of the Borrowers or the Parent or their Subsidiaries in respect of current liabilities incurred in the ordinary course of business not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(c) 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 (S)8.8;
(d) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which such Person shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review;
(e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) 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 existing on the Closing Date but excluding of this Agreement and listed and described on Schedule 9.1 hereto and Indebtedness under the Loan Documents; issued to refinance or replace such Indebtedness, provided that (i) the Borrowers are in current compliance with andobligor on the Indebtedness so refinanced or replaced is the obligor on such refinancing or replacement Indebtedness, (ii) the aggregate amount of such refinancing or replacement Indebtedness plus the amount of Indebtedness listed on Schedule 9.1 which is still outstanding does not exceed the aggregate principal amount of the Indebtedness set forth on Schedule 9.1 hereto (such principal amount to include commitments under revolving credit facilities), (iii) such refinancing or replacement Indebtedness has a final maturity date no earlier than December 1, 2002, (iv) such Indebtedness is on terms and conditions (including, without limitation, terms relating to interest rate, covenants, defaults, mandatory prepayments and the ability of such Subsidiary to make dividends or loans to the Parent or the Borrowers) not materially more onerous to the Borrower or such Subsidiary than the Indebtedness set forth on Schedule 9.1 hereto, (v) if secured, such Indebtedness is not secured by liens on any assets of the Borrower or such Subsidiary which were not previously subject to liens securing the Indebtedness set forth on Schedule 9.1 hereto; and (vi) after giving effect to the proposed incurrence of Indebtedness, will continue to such refinancing or replacement Indebtedness no Default or Event of Default shall have occurred and be continuing and the Borrower shall be in compliance with all of the covenants borrowing limitations set forth in §§9 and 10 hereof as if the transaction occurred on the first day of the period of measurement(S)2.1;
(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 Subsidiaries 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, 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 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection.
Appears in 1 contract
Sources: Revolving Credit Agreement (Trico Marine Services Inc)
Restrictions on Indebtedness. None of the Borrowers will, and The Borrower will not permit any of its Subsidiaries to, (other than the Guarantor) to create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness of any other Person (other than the Borrower or any of the Subsidiaries), other than:
(a) Indebtedness listed in Schedule 8.1(a), any extension, renewal or refinancing of such Indebtedness and any additional bonds issued and Capital Leases entered into from time to time after the Lenders Effective Date; provided that (i) if such Indebtedness is an extension, renewal or refinancing of existing Indebtedness, the terms and conditions of any such extensions, renewals or refinancings shall not increase the Administrative Agent arising under any relative priority of such Indebtedness over the priority of the Loan Documents;original Indebtedness, and (ii) in no event shall the aggregate outstanding principal amount of Indebtedness permitted by this §8.1(a) exceed the aggregate principal amount of the Indebtedness listed on Schedule 8.1(a) that is outstanding on the Effective Date (plus transaction costs, including premiums and fees, related thereto); and
(b) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) 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 Documentsother Indebtedness; 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;
sum (gwithout duplication) 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 Subsidiaries 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, 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 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) the aggregate outstanding principal amount of Indebtedness of the Borrowers (permitted under paragraphs (j) or (lthis §8.1(b)) secured by Liens , plus (ii) the aggregate outstanding principal amount of secured Indebtedness of the Borrowers’ Borrower and its Subsidiaries permitted under subsections (under paragraphs (e), (f), (jk), (l) or and (o)m) of the definition of “Permitted Liens”, plus (iii) the aggregate amount of Indebtedness with respect to outstanding Permitted Receivables Transactions (determined in accordance with the proviso to the definition of “Indebtedness”) shall not exceed fifteen percent (15%) % of Consolidated Total Tangible 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 at any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsectiontime.
Appears in 1 contract
Restrictions on Indebtedness. None of the Borrowers willSuch 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:
(a) Indebtedness to the Lenders Banks and the Administrative Agent arising under any of the Loan DocumentsDocuments or any Interest Rate Agreement;
(b) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) Indebtedness obligations under Capitalized Leases not exceeding $2,000,000 in respect of aggregate amount at any Derivative Contracts in the ordinary course of businesstime outstanding;
(d) Existing Senior DebtIndebtedness incurred after the date hereof in connection with the acquisition of any real or personal property by such Borrower or such Subsidiary, 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 aggregate principal amount of any such Indebtedness of the Existing Senior DebtBorrowers and their Subsidiaries shall not exceed the aggregate amount of $3,000,000 at any one time;
(e) Indebtedness of BGI’s domestic Subsidiaries that are Guarantors not to exceed $10,000,000, including such Indebtedness outstanding existing on the Closing Datedate hereof and listed and described on Schedule 11.1 hereto;
(f) Indebtedness of BGI’s foreign Subsidiaries the Company to any Subsidiary, and Indebtedness of any Borrowing Subsidiary or Foreign Subsidiary which is a Guarantor hereunder to another Borrowing Subsidiary or Foreign Subsidiary which is a Guarantor hereunder so long as the guarantee arrangements are not 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 measurementany manner limited;
(g) Indebtedness of the Borrowers Company or any Domestic Subsidiary that which is a Guarantor that constitutes a Synthetic Lease or Capitalized Lease or otherwise incurred to finance the acquisition of fixed or capital assets (any 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 Domestic Subsidiary that which is a Guarantor in respect of Subordinated Debt;
(i) Indebtedness of or the Borrowers owing to any Company so long as each such Domestic Subsidiary of such Borrower that is remains 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 thereofhereunder;
(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 Subsidiaries 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, 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 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Genrad Inc)
Restrictions on Indebtedness. None of the Borrowers willNo Borrower will become or be a guarantor or surety of, and will not permit any of its Subsidiaries to, or otherwise create, incur, assume, guarantee or be or remain liable, contingently or otherwise (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 thanPerson or incur Indebtedness other than the following; provided that no Event of Default shall have occurred and be continuing and such Indebtedness is permitted by the 2002 Subordinated Note Indenture:
(a) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan Documents;
(b) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) Indebtedness incurred in respect connection with the acquisition or lease financing of any Derivative Contracts in real or personal property by such Borrower or under any Capitalized Lease or Synthetic Lease, provided that the ordinary course aggregate principal amount of businesssuch Indebtedness of the Borrowers shall not exceed $20,000,000 at any one time;
(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 Indebtedness in respect of Swap Contracts entered into pursuant to maturity or increase the principal amount of any of the Existing Senior Debtss.8.13;
(e) Indebtedness existing on the date hereof and listed and described on Schedule 9.1 hereto, together with any renewals, extensions or refinancings thereof on terms which (i) do not increase the principal amount thereunder, and (ii) are not materially different than those in effect as of BGI’s domestic Subsidiaries the date hereof; provided that are Guarantors not to exceed $10,000,000, including no such Indebtedness outstanding on may be prepaid without prior written consent of the Closing DateRequired Lenders;
(f) Indebtedness incurrence by any Borrower of BGI’s foreign Subsidiaries not to exceed guaranty, suretyship or indemnification obligations in connection with such Borrower's performance of services for its respective customers 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 ordinary course 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 measurementits business;
(g) Indebtedness with respect to landfill closure bonds 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 Subsidiaries 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, 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 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 measurement100,000,000;
(ph) unsecured Indebtedness with respect to the L/C Supported IRBs;
(i) Unpaid accrued dividends with respect to the Series C Convertible Preferred Stock, the Series D Convertible Preferred Stock and Series E Convertible Preferred Stock to the extent treated as Indebtedness under GAAP;
(j) Indebtedness of BGI and its domestic Subsidiaries that are Guarantors in IESI MO Corporation with respect of earnout to royalty payments incurred in connection with any acquisition secured by Liens permitted under §9.5; provided that the Borrowers are in current compliance with and, after giving effect pursuant 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; andss.
9.2.1 (ix);
(qk) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 Subordinated Debt permitted pursuant 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. Notwithstanding the foregoing, the aggregate amount of ss.9.7;
(il) 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 to fuel purchased in the ordinary course of business of the Borrowers (under paragraphs "Fuel Derivatives Obligations"), provided that the aggregate notional amount of such agreements do not exceed $10,000,000 outstanding at any time, the maturity of such agreements do not exceed thirty-six (j36) or (l)) secured by Liens plus (ii) Indebtedness months, and the terms are consistent with past practices of the Borrowers’ Subsidiaries ; and
(under paragraphs (e), (f), (j), (lm) or (o)) shall Other unsecured Indebtedness in an aggregate amount not to 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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection$10,000,000.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Iesi Corp)
Restrictions on Indebtedness. None of the Borrowers willThe Borrower shall not, and will shall not permit any of its Subsidiaries to, create, incur, assume, guarantee assume or be or remain liable, contingently or otherwise, with respect suffer to exist any Indebtedness in addition to Indebtedness under this Agreement and the other Loan Documents, other than:
(a) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan DocumentsBorrower and its Subsidiaries of any kind whatsoever existing on the Original Effective Date (including the Midwest Finance Note Guarantee);
(b) endorsements for collectionPriority Lien Debt and Parity Lien Debt;
(c) (i) Capitalized Lease Liabilities and Operating Lease Liabilities outstanding on December 31, deposit or negotiation 2004 and warranties of products or services, in each case incurred set forth on Schedule 7.2.1(c) and (ii) Capitalized Lease Liabilities and Operating Lease Liabilities entered into in the ordinary course of business;
business not to exceed at any time an aggregate notional principal amount of $100,000,000, including in the case of each of clause (ci) Indebtedness in respect of any Derivative Contracts and clause (ii) above, Capitalized Lease Liabilities and Operating Lease Liabilities entered into in the ordinary course of businessbusiness to replace or refinance Capitalized Lease Liabilities or Operating Lease Liabilities permitted pursuant to this Section 7.2.1(c);
(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 Indebtedness of the Existing Senior DebtBorrower under Interest Rate Hedging Transactions;
(e) Subject to Section 7.2.8, Indebtedness of BGI’s domestic Subsidiaries that are Guarantors not the Borrower incurred to exceed $10,000,000finance the acquisition, including such Indebtedness outstanding on the Closing Dateconstruction or improvement of any fixed or capital assets in accordance with and subject to Schedule 7.2.1(e)hereto;
(f) Indebtedness consisting 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 reimbursement obligations of the Borrowers owing Borrower with respect to any Subsidiary letters 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 credit, surety bonds 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 used by 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 Subsidiaries 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, 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 supply chain financing Borrower in the ordinary course of business which is nonrecourse to the Borrowers in an aggregate amount not to exceed $75,000,00040,000,000 at any time and (ii) workers' compensation claims, self-insurance obligations and bankers' acceptances;
(g) unsecured Indebtedness in respect of obligations of the Borrower or any of its Subsidiaries to pay the deferred purchase price of goods and services or progress payments in connection with such goods and services; provided provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within sixty (60) days of the Borrowers are incurrence of the related Indebtedness) in current compliance the ordinary course of business and not in connection with andthe borrowing of money;
(h) Indebtedness in the form of subordinated, unsecured intercompany loans between the Borrower and its Subsidiaries;
(i) Indebtedness in the form of Guarantees made by and reimbursement obligations with respect to stand-by letters of credit issued for the account of the Borrower (including, in each case, Permitted Marketing Support) in the ordinary course of business related to the Facilities in connection with Permitted Trading Activities conducted by or for the benefit of the Borrower, whether directly with unaffiliated third parties or with EMMT;
(j) Subject to Section 3.1.2, other Indebtedness of the Borrower; provided, that no Default or Event of Default has occurred or would occur after giving effect to the proposed incurrence or issuance of such 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;
(pk) unsecured Indebtedness of BGI and its domestic Subsidiaries that are Guarantors in respect of earnout payments incurred in connection with any acquisition permitted under §9.5to finance Necessary Capital Expenditures;
(l) Environmental CapEx Debt; provided that the Borrowers are in current compliance with andprovided, after giving effect that, prior to the proposed incurrence of Indebtednessany Environmental CapEx Debt, will continue the Borrower shall deliver to be in compliance with all of the covenants in §§9 and 10 hereof Administrative Agent an Officer's Certificate designating such Indebtedness as if the transaction occurred on the first day of the period of measurementEnvironmental CapEx Debt; and
(qm) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, in respect of convertible notes, with a maturity date later than the Maturity Date; provided that incurrence by 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) Borrower or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount Subsidiaries of Indebtedness deemed incurred under arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds, so long as such subsectionIndebtedness is covered within five (5) Business Days.
Appears in 1 contract
Restrictions on Indebtedness. None of the Borrowers willThe 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:than the following (each of which categories shall be interpreted as being separately permitted, notwithstanding any overlap among such categories):
(a) Indebtedness to the Lenders Banks and the Administrative Agent arising under any of the Loan Documents;
(b) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) Indebtedness (i) incurred in respect connection with the secured financing of any Derivative Contracts in real or personal property by the ordinary course Borrower or any of businessits Domestic Subsidiaries, (ii) under any Synthetic Lease or (iii) under any Capitalized Lease, provided that the aggregate principal amount of such Indebtedness (including under any such Synthetic Lease or Capitalized Lease) of the Borrower and its Domestic Subsidiaries shall not exceed the aggregate amount of $5,000,000 at any one time;
(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 Indebtedness of the Existing Senior DebtBorrower and its Domestic Subsidiaries existing on the date hereof and listed and described on Schedule 8.1(d) hereto;
(e) Indebtedness of BGI’s domestic the Borrower's Foreign Subsidiaries that are Guarantors not to exceed $10,000,000, including such Indebtedness outstanding existing on the Closing Datedate hereof and listed and described on Schedule 8.1(e) hereto;
(f) Indebtedness (i) of BGI’s foreign Subsidiaries not to exceed in a Subsidiary of 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 Borrower to the proposed incurrence of Indebtedness, will continue Borrower or to be in compliance with all another Subsidiary of the covenants in §§9 and 10 hereof as if the transaction occurred on the first day Borrower, (ii) of the period of measurement;
Borrower to any Guarantor, or (giii) Indebtedness of the Borrowers or any Subsidiary that is a Guarantor that constitutes a Synthetic Lease or Capitalized Lease or otherwise incurred Borrower 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) World Properties in an aggregate principal amount not to exceed $30,000,000 at any time outstanding30,000,000; provided that in each of cases (ii) and (iii) above, such Indebtedness shall be subordinated to the Obligations on terms and conditions satisfactory to the Agent and the Banks;
(hg) Indebtedness of the Borrowers or any Subsidiary that is a Guarantor in respect of Subordinated Debt;
(i) Indebtedness borrowings against the cash value of life insurance policies owned by 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 its 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 6,000,000;
(h) Indebtedness of Foreign Subsidiaries (other than as permitted by Section 8.1(f)) which, when aggregated with amounts outstanding under Section 8.1(e), shall not exceed fifty percent (50%) of Consolidated Foreign Tangible Assets at any time;
(i) Indebtedness (in addition to and other than Indebtedness otherwise permitted and classified as Investments pursuant to paragraphs (g) and (h) of Section 8.3 hereof) in respect of guaranties by the Borrower or any of its Domestic Subsidiaries of Indebtedness of Foreign Subsidiaries or Joint Ventures ("Guarantied JV/Foreign Indebtedness"); provided that the aggregate principal amount of all Guarantied JV/Foreign Indebtedness shall not exceed $5,000,000 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;
(mj) Indebtedness in respect of Subsidiaries of the Borrowers which are Guarantors owing to any other Subsidiaries of the Borrowers which are Guarantors or to the Borrowers which results from an Investment permitted under §9.3(gDerivative Contracts entered into solely for hedging (and not speculative) or (i);
(n) Indebtedness of BGI and its domestic Subsidiaries which are Guarantors incurred in connection with Sale Leaseback Transactions, 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 supply chain financing purposes in the ordinary course of business which is nonrecourse to the Borrowers in an aggregate amount not to exceed $75,000,000Borrower's (or the applicable Subsidiary's) business; and
(k) unsecured Indebtedness of the Borrower and its Domestic Subsidiaries other than as permitted by clauses (a) through (j) above; 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate principal amount of (i) all such Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 $5,000,000 at any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsectiontime outstanding.
Appears in 1 contract
Sources: Multicurrency Revolving Credit Agreement (Rogers Corp)
Restrictions on Indebtedness. None of the Borrowers will, and will not permit any of its Subsidiaries to, createCreate, incur, assumesuffer or permit to exist, guarantee or be assume or guarantee, either directly or indirectly, or otherwise become or remain liable, contingently or otherwise, liable with respect to to, any Indebtedness, except the following (which Indebtedness other than:is expressly permitted):
(a) Indebtedness to outstanding at the Lenders date of this Agreement as set forth on Schedule 5.16 and refinancings and replacements thereof, provided the Administrative Agent arising under any of the Loan Documents;principal amount thereof is not increased.
(b) endorsements Indebtedness on account of Consolidated Current Liabilities (other than for collection, deposit or negotiation and warranties of products or services, in each case money borrowed) incurred in the normal and ordinary course of business;.
(c) Indebtedness in respect of (i) Taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment thereof shall not at the time be required to be made in accordance with the provisions of Section 8.2 hereof, (ii) judgments or awards which have been in force for less than the applicable appeal period so long as execution is not levied thereunder or in respect of which Gerber or any Derivative Contracts Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review in a manner satisfactory to the Lenders and in respect of which a stay of execution shall have been obtained pending such appeal or review and for which adequate reserves have been established in accordance with generally accepted accounting principles, and (iii) endorsements made in connection with the deposit of items for credit or collection in the ordinary course of business;.
(d) Existing Senior Debt, and refundings, replacements or refinancings thereof; provided that no such refunding or refinancing shall shorten the maturity or weighted average life Indebtedness in an amount not to maturity or increase the principal amount exceed $5,000,000 in respect of any of the Existing Senior Debt;purchase money security interests permitted under Section 9.2(b) hereof.
(e) Indebtedness of BGI’s domestic Subsidiaries that are Guarantors not to exceed $10,000,000, including such Indebtedness outstanding on the Closing Date;Lenders under the Loan Documents.
(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 any Loan Party to another Loan Party; (ii) short-term Indebtedness (i.e. Indebtedness to be repaid within 90 days) of (A) any of Gerber's Subsidiaries to Gerber or any other Subsidiary or (B) Gerber 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;
its Subsidiaries for short-term working capital needs; (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;
(kiii) Indebtedness of any wholly-owned Subsidiaries of the Borrowers or any of their Subsidiaries which Gerber that are Guarantors incurred in connection with the issuance of any surety bonds, Performance Letters of Credit or other similar performance bonds required pursuant not Loan Parties to any contractual Obligation or requirement of law to which any of the Borrowers or any of their Subsidiaries which are Guarantors are subject Loan Parties in an aggregate principal amount together with (A) the amount of Indebtedness of any Related Subsidiaries to any Loan Party, (B) the amount of Indebtedness of such wholly-owned Subsidiaries and any Related Subsidiaries under clause (v) of this Section 9.1(f) and (C) the amount of Investments described in Section 9.3(d)(ii) with respect to such Subsidiaries and Related Subsidiaries, in each case made after the Closing Date, not to exceed (x) $15,000,000 10,000,000 at any time outstanding;outstanding with respect to any one Subsidiary and its Related Subsidiaries (other than Gerber Australia for which such amount shall not exceed $5,000,000) or (y) $40,000,000 with respect to all Subsidiaries; (iv) Indebtedness of any Loan Party to any wholly-owned Subsidiary of Gerber that is not a Loan Party so long as such Indebtedness is subordinated to all Lender Obligations; and (v) Indebtedness of any wholly-owned Subsidiary of Gerber that is not a Loan Party to any other wholly-owned Subsidiary of Gerber that is not a Loan Party.
(lg) additional Other Indebtedness of the Borrowers not exceeding $35,000,000 less any Loan Parties, including without limitation Indebtedness incurred under paragraph (g), in aggregate principal amount at any one time outstanding;
(m) Indebtedness of Subsidiaries arising as a result of the Borrowers failure to pay when due or in conformance with customary trade terms, any lease obligations or trade debt and including the net obligations under Interest Rate Protection Agreements which are Guarantors owing to any other Subsidiaries 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 Transactionsnot Secured Interest Rate Protection Agreements valued at their Swap Termination Value, 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 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; 10,000,000, provided that the Borrowers are in current compliance with and, after giving effect to the proposed incurrence not more than $5,000,000 of Indebtedness, will continue to such other Indebtedness may 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (permitted under paragraphs (eSection 9.2(h), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Gerber Scientific Inc)
Restrictions on Indebtedness. None of The Borrowers and the Borrowers will, and Subsidiary Guarantors 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:
(ai) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan DocumentsDocuments and Hedge Obligations to a Lender Hedge Provider;
(bii) current liabilities of the Borrowers or the Subsidiary Guarantors incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(iii) 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) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(v) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(cvi) 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 Subsidiaries of the Borrowers which are Guarantors landowners, government or to the Borrowers which results from an Investment permitted under §9.3(g) quasi-government or (i);
(n) Indebtedness of BGI and its domestic Subsidiaries which are Guarantors incurred in connection with Sale Leaseback Transactions, 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 entity or supply chain financing similar entity 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 the construction or development of any acquisition permitted under §9.5; 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are GuarantorsReal Estate, including, without limitation, convertible notessubdivision 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 each case, on terms no more restrictive than this Credit Agreement, and, the ordinary course of business in respect connection with the development of convertible notes, with a maturity date later than Real Estate or construction of infrastructure in connection therewith;
(vii) To the Maturity Date; provided that the Borrowers are in current compliance with and, after giving effect to the proposed incurrence of extent constituting Indebtedness, will continue to be the redemption obligations set forth 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. Notwithstanding the foregoing, the aggregate amount of Partnership Agreement;
(iviii) Indebtedness of the Borrowers Parent Borrower under carve-out guaranties and environmental indemnifications on first mortgage or other property related loans, provided the Parent Borrower shall use commercially reasonably efforts to have any such guaranties or environmental indemnifications be provided by the Guarantor before being provided by the Parent Borrower; and
(under paragraphs ix) The Guarantor will not incur any Recourse Indebtedness other than (ji) guaranties and other direct indebtedness of the Guarantor consisting of carve-out guaranties and environmental indemnifications on first mortgage or (l)) secured by Liens plus other property related loans; and (ii) Indebtedness under the Guaranty; and (iii) other Indebtedness in an aggregate amount at any one time not in excess of the Borrowers’ Subsidiaries (under paragraphs (e), (f), (j), (l) or (o)) shall not exceed fifteen five percent (155%) of Consolidated Total Assets Guarantor’s Tangible Net Worth. Notwithstanding anything in this Agreement to the contrary, none of the Borrowers, determined as Indebtedness described in §8.1 above shall have any of the end Collateral Properties or any interest therein or any direct ownership interest in any Subsidiary Credit Party as collateral, a borrowing base, asset pool or any similar form of credit support for such Indebtedness (provided that the foregoing shall not preclude Subsidiaries of the then most recently completed fiscal year of Guarantor (other than a Borrower or a Subsidiary Guarantor) to incur Indebtedness which would be prohibited by the Borrowers. For the avoidance of doubt, the parties acknowledge and agree that if Indebtedness permitted in any subsection terms of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection§8.1).
Appears in 1 contract
Restrictions on Indebtedness. None of the Borrowers willagreement to purchase any obligations, and will not permit stock, assets, goods or services, or to supply or advance any of its Subsidiaries tofunds, createassets, incur, assume, guarantee goods or be or remain liable, contingently services or otherwise, ) with respect to any undertaking or Indebtedness of any other Person, or incur any Indebtedness other than:
(a) Indebtedness to the Lenders and Lenders, the Administrative Agent and the Issuing Bank arising under any of this Credit Agreement or the other Loan Documents;
(b) endorsements incurrence of guaranty, suretyship or indemnification obligations in connection with the Borrowers' performance of services for collection, deposit or negotiation and warranties of products or services, in each case incurred their respective customers in the ordinary course of businesstheir businesses;
(c) Indebtedness of one Borrower to another then existing Borrower;
(i) purchase money Indebtedness incurred in connection with the acquisition of any real or personal property, (ii) Indebtedness of any Restricted 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 and 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 with respect to obligations under Capitalized Leases or sale and leaseback transactions (without duplication); (v) Indebtedness in respect of Synthetic Leases, (vi) Indebtedness (other than Subordinated Debt) incurred in connection with acquisitions after the date hereof of any Derivative Contracts equity interest in, or assets of any Person owing to the seller(s) of such equity interests or assets and; (vii) any guarantee or sale of recourse promissory notes by any of the Borrowers of Indebtedness of any Person incurred in connection with the ordinary course purchase of business;
equipment from the Borrowers, the Unrestricted Subsidiaries, or 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 (A) any such acquisitions are otherwise permitted pursuant to ss.8.4; (B) the aggregate amount of all Indebtedness under this subsection (d) Existing Senior Debtshall not exceed $15,000,000 MINUS, without duplication, Operating Lease Obligations, and refundings, replacements or refinancings thereof; provided that no such refunding or refinancing shall shorten (C) the maturity or weighted average life to maturity or increase the principal amount incurrence of any such Indebtedness would not otherwise create an Event of the Existing Senior DebtDefault under ss.9;
(e) Indebtedness of BGI’s domestic Subsidiaries that are Guarantors not to exceed $10,000,000Subordinated Debt, including provided such Indebtedness outstanding on 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 DateDate any Restricted Subsidiary of the Parent guarantees 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 Restricted Subsidiary (even if such sale was made in a foreclosure) in substantially the same form of release provision as in the Senior 13 -13- Subordinated Indenture and PROVIDED further that the Obligations hereunder shall be "senior debt";
(f) Indebtedness incurred in respect 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 measurementSwap Contracts;
(g) Indebtedness existing as 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;First Amendment Effective Date and listed and described on SCHEDULE 8.1 hereto
(h) Indebtedness of any Borrower incurred to refinance or replace other Indebtedness permitted under this ss.8.1, PROVIDED THAT (i) the Borrowers principal amount (or any Subsidiary that is a Guarantor committed principal amount) of such refinancing Indebtedness shall not exceed the outstanding principal amount (or committed principal amount) of the Indebtedness being refinanced and (ii) the terms of such refinancing Indebtedness are not more onerous in respect the aggregate to such Borrower than the terms of Subordinated Debtthe Indebtedness being refinanced;
(i) Indebtedness unsecured guarantees of the Borrowers owing to Parent of any Subsidiary of such Borrower that is a Guarantor which is expressly subordinated to the prior payment Indebtedness permitted in full in cash of all Obligations on terms disclosed to and reasonably acceptable to the Administrative Agent prior to the incurrence thereof(b) through (h) above;
(j) Indebtedness of a Person outstanding at the time it is first acquired by any of ES SPV with respect to Permitted Equipment Securitizations which Indebtedness shall be non-recourse to the Borrowers except as permitted 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 acquisitionss.8.1(l) hereof;
(k) other Indebtedness of any of Unrestricted Subsidiary which is non-recourse to the Borrowers or any (except that the capital stock 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 such Unrestricted Subsidiary may be pledged by the Borrowers or any to secure such Indebtedness of their Subsidiaries which are Guarantors are subject in an aggregate principal amount not to exceed $15,000,000 at any time outstandingsuch Unrestricted Subsidiary);
(l) additional recourse Indebtedness of the Borrowers not exceeding $35,000,000 less 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 Indebtedness incurred under paragraph (g), guarantees by the Parent in aggregate principal amount at any one time outstandingrespect thereof) arising in connection with Permitted Equipment Securitizations;
(m) Indebtedness with respect to the indemnification of Subsidiaries officers and directors of the Borrowers which are Guarantors owing to or any other Subsidiaries 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, 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 supply chain financing Subsidiary 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 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 measurementbusiness; and
(qn) unsecured contingent Indebtedness of BGI with respect to the Series A Preferred Stock and its domestic Subsidiaries which are Guarantorsthe Series B Preferred Stock, including, without limitation, convertible notes, in each case, on terms provided that no more restrictive than this Credit Agreement, and, in Distribution shall be made with respect of convertible notes, with a maturity date later than the Maturity Dateto such Indebtedness; provided that if the Borrowers are in current compliance with andcreation, after giving effect incurrence, assumption or existence of any Indebtedness would constitute an Event of Default under, or be prohibited pursuant 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. Notwithstanding the foregoingterms of, the aggregate amount then existing Subordinated Debt, then the creation, incurrence, assumption or existence of (i) such Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 be permitted in any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsectionhereunder."
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Nationsrent Inc)
Restrictions on Indebtedness. None of the Borrowers will, and will not permit Credit Parties nor any of its Subsidiaries to, create, will incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to of the Lenders and Credit Parties consisting of the Administrative Agent arising Obligations under any of the Loan Documents;
(b) endorsements for collectionIndebtedness 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, deposit changing the amortization thereof (other than to extend the same), decreasing the weighted average life thereof, accelerating the maturity date thereof or negotiation increasing the cash pay interest thereof and warranties 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 products the Indebtedness being refinanced, amended or services, in each case incurred in the ordinary course of businessmodified;
(c) Indebtedness in respect of any Derivative Swap Contracts in the ordinary course of businessentered into not for speculative purposes;
(d) Existing Senior Debt, Indebtedness consisting of intercompany loans 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 Debtadvances permitted by Section 7.01(c);
(e) Guarantees by any Credit Party of Indebtedness of BGI’s domestic Subsidiaries that are Guarantors not to exceed $10,000,000, including such Indebtedness outstanding on the Closing Dateany other Credit Party permitted by this Section 7.02;
(f) Indebtedness consisting of BGI’s foreign Subsidiaries not to exceed (i) contingent liabilities under surety bonds and similar instruments incurred in the ordinary course of business or (ii) letters of credit that are consistent with past practice in an aggregate for all such foreign Subsidiaries amount not exceeding $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 measurement1,600,000 at any time outstanding;
(g) Indebtedness in the ordinary course of business in respect of (i) services provided from time to time to any Credit Party or Subsidiary in connection with operating, collections, payroll, trust, or other depository or disbursement accounts, including netting services, automatic clearinghouse, controlled disbursement, depository, electronic funds transfer, foreign currency conversion, information reporting, lockbox, stop payment, overdraft and/or wire transfer services and all other treasury and cash management services, (ii) commercial credit card, purchase card and merchant card services and (iii) other similar banking products or services as may be requested by any Credit Party or Subsidiary from time to time;
(h) to the Borrowers extent constituting Indebtedness, obligations in respect of agreements for the deferred payment of premiums or any Subsidiary that is a Guarantor that constitutes a Synthetic Lease or Capitalized Lease or otherwise incurred to finance the acquisition deferred payment of fixed premiums owing by any Credit Party under any insurance policies entered into in the ordinary course of business that are either (i) unsecured or capital assets (ii) secured by a Lien permitted under Section 7.03(a)(x);
(i) Indebtedness of the Credit Parties and their Subsidiaries consisting of Capitalized Leases or Indebtedness incurred to provide all or a portion of the purchase price or cost of construction of an asset; provided that (i) such Indebtedness when incurred shall not exceed the purchase price or cost of construction of such asset; (ii) no such Indebtedness shall be renewed, refinanced or extended for a principal amount in excess of the principal balance outstanding thereon at the time of such renewal, refinancing or extension (other than pursuant by an amount equal to Sale Leaseback Transactions referred all accrued and unpaid interest thereon, any premium required to be paid in §9.1(n), whether pursuant to a loan, financing lease or otherwiseconnection therein and all reasonable expenses incurred in connection therewith); and (iii) the total amount of all such Indebtedness shall not exceed $1,500,000 at any time outstanding; and
(j) other unsecured Indebtedness in an aggregate principal amount not to exceed $30,000,000 500,000 at any time outstanding;
(h) Indebtedness of outstanding during 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 Subsidiaries 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, 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 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection term of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsectionAgreement.
Appears in 1 contract
Sources: Credit Agreement (Fluent, Inc.)
Restrictions on Indebtedness. None of the Borrowers willThe Borrower will not, and will not permit any of its Subsidiaries to, create, incur, assume, guarantee assume or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders Banks and the Administrative Agent arising under any of the Loan Documents;
(b) endorsements for collectionthe Borrower and its Subsidiaries may permit to exist the existing Indebtedness shown on SCHEDULE 9.1 hereto;
(c) Indebtedness under the Senior Notes as in effect on the date hereof or as modified consistent with Section 9.5 or any refinancing or replacement thereof; PROVIDED, deposit HOWEVER, that (i) the outstanding principal amount of such refinancing or negotiation replacement shall not exceed $150,000,000 minus the amount of any repurchases made pursuant to Section 9.5(b) and warranties (ii) such refinancing or replacement shall be in terms no less favorable to the Borrower than the terms of products the Senior Notes Indenture as on effect on the date hereof;
(d) the Borrower and its Subsidiaries that are Guarantors may incur Indebtedness owing to and held by the Borrower or servicesother Subsidiaries of the Borrower;
(e) Subsidiaries of the Borrower which are not Guarantors may incur Indebtedness to the Borrower and other Subsidiaries of the Borrower not to exceed $10,000,000 at any time;
(f) MC may incur (i) unsecured Indebtedness in an aggregate amount not to exceed an amount equal to the Canadian Dollar equivalent of $10,000,000 outstanding at any one time and (ii) Indebtedness to the Borrower pursuant to the Canadian License Agreement;
(g) the Borrower and its Subsidiaries may incur or permit to exist Indebtedness of the Borrower and its Subsidiaries represented by Capitalized Lease obligations, mortgage financings or purchase money obligations, in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or costs of construction, repairs, renovation, remodeling, expansion or other improvement of property, plant and equipment, including services and equipment supporting such items used in Borrower's business or any Subsidiary's business in an aggregate principal amount outstanding not to exceed ten percent (10%) of Consolidated Tangible Net Worth of the Borrower and its Subsidiaries at the time of any incurrence of such Indebtedness;
(h) the Borrower and its Subsidiaries may incur or permit to exist, unsecured Indebtedness consisting of commercial or stand-by letters of credit with financial institutions that are not Lenders PROVIDED that the maximum amount outstanding of such Indebtedness at any one time for the benefit of any Person that is not an Affiliate of the Borrower shall not exceed $15,000,000;
(i) the Borrower and its Subsidiaries may incur or permit to exist unsecured Indebtedness consisting of performance bonds, bankers' acceptances, surety or appeal bonds provided by the Borrower or any Subsidiary in the ordinary course of its business and which do not secure other Indebtedness;
(j) any Subsidiary of the Borrower that is a Guarantor may guaranty the obligations of the Borrower under the Senior Notes;
(k) the Borrower and its Subsidiaries may incur or permit to exist Indebtedness to 5931, Inc. and 5931 Business Trust consisting of obligations to make Royalty Payments and other Indebtedness not to exceed $1,000,000,000 in accordance with the provisions of the Subordination Agreement;
(l) the Borrower and its Subsidiaries may incur or permit to exist Indebtedness with respect to accounts payable and accrued liabilities incurred in the ordinary course of business, and each of the Subsidiaries may incur or permit to exist Indebtedness with respect to accounts payable to the Borrower related to the Borrower's transfer of inventory to such Subsidiary and related to obligations incurred and payments required under operating leases paid by the Borrower on behalf of such Subsidiary, each in the ordinary course of business;
(cm) the Borrower and any Subsidiary may incur or permit to exist Indebtedness in respect the form of any Derivative Contracts in guaranties by the ordinary course of business;
(d) Existing Senior Debt, and refundings, replacements Borrower 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;any
(i) Indebtedness of the Borrowers owing to Borrower or any Subsidiary which the Borrower or such Subsidiary is permitted to incur pursuant to this Section 9.1, (ii) Indebtedness of such Borrower that is a Guarantor which is expressly subordinated MC up to the prior payment in full in cash Canadian Dollar equivalent of all Obligations on terms disclosed to $10,000,000 as permitted above, (iii) Investments permitted by Section 9.3(f), and reasonably acceptable to (iv) operating lease obligations of the Administrative Agent prior to the incurrence thereofBorrower and any Subsidiary;
(jn) the Borrower may incur or permit to exist Indebtedness with respect to the Capitalized Leases incurred from time to time for point-of-sale equipment and store systems, and services and equipment supporting this equipment and systems, the obligations under which do not exceed $40,000,000 in the aggregate throughout the term of a Person outstanding at this Credit Agreement;
(o) the time it is first acquired by any Borrower and its Subsidiaries may incur or permit to exist Indebtedness assumed with respect to acquisitions permitted in accordance with Section 9.6, or consisting of the Borrowers in an acquisition permitted pursuant to §9.5.1(g)guaranties of such Indebtedness, provided that any so long as such Indebtedness was not created at the time of or in contemplation or in anticipation of such acquisitionacquisition and six months following the closing date of such acquisition does not exceed, in the aggregate, $10,000,000;
(kp) the Borrower and its Subsidiaries may incur or permit to exist Indebtedness of any under deferred compensation plans, employee separation agreements, employee stock purchase plans and 401(k) plans 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 outstandingBorrower and/or its Subsidiaries;
(lq) additional the Borrower may incur or permit to exist Indebtedness of with respect to stock repurchases by the Borrowers not exceeding $35,000,000 less any Indebtedness incurred under paragraph (g), Borrower permitted in aggregate principal amount at any one time outstanding;
(m) Indebtedness of Subsidiaries of the Borrowers which are Guarantors owing to any other Subsidiaries 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 accordance with Sale Leaseback Transactions, 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 supply chain financing in the ordinary course of business which is nonrecourse to the Borrowers Section 9.4 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 measurement70,000,000;
(pr) unsecured Indebtedness of BGI the Borrower and its domestic Subsidiaries that are Guarantors in may incur or permit to exist Indebtedness with respect to Derivative Transactions;
(s) the Borrower and its Subsidiaries may permit to exist Indebtedness consisting of earnout payments incurred in connection letters of credit with any acquisition of the Banks, which Indebtedness is not an Obligation or a Letter of Credit under this Agreement; PROVIDED, HOWEVER, that Indebtedness for standby letters of credit permitted under §9.5; provided that this Section 9.1(s) shall not at any time exceed $30,000,000 in 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 measurementaggregate; and
(qt) unsecured in addition to the Indebtedness permitted in subsections (a)-(s) of BGI this Section 9.1, the Borrower and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e)excluding 5931, (f), (j), (lInc. and 5931 Business Trust) may incur or (o)) shall permit to exist additional Indebtedness not to exceed fifteen at any one time ten percent (1510%) of the Consolidated Total Assets Tangible Net Worth 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 Borrower and agree that if Indebtedness permitted in any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection.
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Restrictions on Indebtedness. None of the Borrowers willThe Borrower will not, and will not permit its respective Subsidiaries or any of its Subsidiaries the Guarantors to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan Documents;
(b) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(c) Indebtedness in respect of taxes, assessments (excluding assessments with respect to PACE Loans unless such PACE Loans are permitted under this Agreement), governmental charges or levies, assessments and other obligations in respect of PACE Loans permitted under this Agreement and claims for labor, materials and supplies, in each case, to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8;
(d) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in a Default;
(e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) 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) subject to the provisions of §9, Recourse Indebtedness of BGI’s foreign Subsidiaries not to exceed in the aggregate for all such foreign Subsidiaries $100,000,000which is Secured Debt (including, including such Indebtedness outstanding on the Closing Date but excluding Indebtedness under the Loan Documentswithout limitation, Equity Pledge Secured Debt that is Recourse Indebtedness); provided that the Borrowers are in current compliance with and, after giving effect aggregate amount of such Recourse Indebtedness which is Secured Debt outstanding at any one time (not including the Loans to the proposed incurrence extent the same shall at any time constitute Recourse Indebtedness which is Secured Debt), determined on a Consolidated basis, shall not exceed percent (10.0%) 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 measurementConsolidated Total Asset Value);
(g) Non-Recourse 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 Subsidiaries of fixed or capital assets Parent (other than pursuant to Sale Leaseback Transactions referred to in §9.1(nany Subsidiaries of Borrower that directly or indirectly own or lease a Subject Property), 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) Non-Recourse Indebtedness of the Borrowers Borrower 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 constituting purchase money indebtedness 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 bondsequipment financing, 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 4,000,000.00 in the aggregate outstanding at any time outstandingtime;
(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 Subsidiaries 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, 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 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect of such Indebtedness, the BGI Guaranty shall not increase the amount of Indebtedness deemed incurred under such subsection.
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Restrictions on Indebtedness. 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:
(a) Indebtedness to the Lenders and the Administrative Agent arising under any of the Loan Documents;
(b) current liabilities of Borrowers incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services;
(c) 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;
(d) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default;
(e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business;
(c) 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 Parent Borrower 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 connection with and, after giving effect to the proposed incurrence of Indebtedness, will continue to be in compliance with all of the covenants in §§9 completion 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) similar guaranties 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 not in excess of the Borrowers which are Guarantors owing to any other Subsidiaries 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, 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 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 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; and
(q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, 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 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. Notwithstanding the foregoing, the aggregate amount greater of (i) Indebtedness of the Borrowers (under paragraphs (j) $175,000,000 or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (f), (j), (l) or (o)) shall not exceed fifteen percent (15%) of Consolidated Total Assets the Gross Asset Value;
(g) Other Indebtedness of Parent Borrower, the REIT or any of their Subsidiaries (other than any Subsidiary Borrower), provided that none of such Persons shall incur any of the Borrowers, determined as Indebtedness described in this § 8.1(g) unless it shall have provided to the Agent prior written notice 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 any subsection of this Section 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the obligations of any Subsidiary in respect proposed incurrence of such Indebtedness, a statement that the BGI Guaranty shall borrowing will not increase cause a Default or Event of Default and a Compliance Certificate demonstrating that Borrowers will be in compliance with its covenants referred to therein after giving effect to the amount incurrence of Indebtedness deemed incurred under such subsection.Indebtedness;
(h) Derivatives Contracts (including Approved Derivatives Contracts) reasonably acceptable to the Agent sufficient to ensure Borrowers’ compliance with § 9.7; and
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