Acquisitions; Investments. a) The Company will not, and will not permit its Subsidiaries to: (i) at any time that the Leverage Ratio equals or exceeds 6.00:1:00, acquire ownership of Hotel Properties or other real estate or other assets constituting Related Businesses (or all or a portion of the Capital Stock of a Person owning such real estate or Related Businesses (including (in either case) by way of merger)) if, at the time of such acquisition, the Financial Condition Test is not satisfied; or (ii) at any time that the Leverage Ratio equals or exceeds 6.00:1:00, acquire ownership of non-real estate assets (other than Permitted Investments or inventory, materials, equipment and other personal property used in the ordinary course of business) (or all or a portion of the Capital Stock of a Person owning primarily such non-real estate assets (including by way of merger or Investment)) if (A) at the time of such acquisition, the Financial Condition Test is not satisfied or (B) after giving effect to such acquisition, the aggregate amount of all such non-real estate assets acquired in the then current fiscal year of the Company pursuant to this Section 7.10(a)(ii) would exceed 1% of the Adjusted Total Assets, determined at the time such acquisition is made (with any unused Roll Forward Amount from one fiscal year increasing the amount available in subsequent fiscal years); provided that the amount of acquisitions made pursuant to this Section 7.10(a)(ii) shall be calculated net of reductions of such investments resulting from repayments, dividends or other distributions to the Company or any Subsidiary from such investments. Notwithstanding anything to the contrary in this Section 7.10, for the purposes of determining whether an Investment complies with the requirements of this Section 7.10(a), (A) compliance shall be tested as of the date that the Company or any Subsidiary of the Company enters into a binding contractual commitment relating to such Investment and (B) an Investment that takes place in a series of related transactions contemplated by definitive agreements relating to such Investment (such as an Investment in a form similar to a reverse like-kind exchange transaction as contemplated by Rev. Proc. 2000-37, 2000-2 C.B. 308) will be permitted pursuant to this Section 7.10(a) so long as the completion of such series of related transactions (as opposed to the completion of any individual component) would result in an Investment permitted under this Section 7.10(a). Acquisitions and Investments made in the case of Section 7.10(a)(ii), during a period when the Leverage Ratio is less than 6.00:1.00, shall, in the event that the Leverage Ratio subsequently exceeds 6.00:1.00, be counted against the basket provided for in Section 7.10(a)(ii) for purposes of determining basket availability only. b) At any time that the Leverage Ratio is less than 6.00:1.00, the Company and the Guarantors shall be permitted to make the Investments and acquisitions described in Section 7.10(a) so long as at the time of such Investments or acquisitions, the Financial Condition Test is satisfied.
Appears in 2 contracts
Samples: Credit Agreement (Host Hotels & Resorts L.P.), Credit Agreement (Host Hotels & Resorts L.P.)
Acquisitions; Investments. (a) The Company will not, and will not permit its Subsidiaries to:
(i) at any time that the Leverage Ratio equals or exceeds 6.00:1:00, acquire ownership of Hotel Properties or other real estate or other assets constituting Related Businesses (or all or a portion of the Capital Stock of a Person owning such real estate or Related Businesses (including (in either case) by way of merger)) if, at the time of such acquisition, the Financial Condition Test is not satisfied; or
(ii) at any time that the Leverage Ratio equals or exceeds 6.00:1:00, acquire ownership of non-real estate assets (other than Permitted Investments or inventory, materials, equipment and other personal property used in the ordinary course of business) (or all or a portion of the Capital Stock of a Person owning primarily such non-real estate assets (including by way of merger or Investment)) if (A) at the time of such acquisition, the Financial Condition Test is not satisfied or (B) after giving effect to such acquisition, the aggregate amount of all such non-real estate assets acquired in the then current fiscal year of the Company pursuant to this Section 7.10(a)(ii) would exceed 1% of the Adjusted Total Assets, determined at the time such acquisition is made (with any unused Roll Forward Amount from one fiscal year increasing the amount available in subsequent fiscal years); provided that the amount of acquisitions made pursuant to this Section 7.10(a)(ii) shall be calculated net of reductions of such investments resulting from repayments, dividends or other distributions to the Company or any Subsidiary from such investments. Notwithstanding anything to the contrary in this Section 7.10, for the purposes of determining whether an Investment complies with the requirements of this Section 7.10(a), (A) compliance shall be tested as of the date that the Company or any Subsidiary of the Company enters into a binding contractual commitment relating to such Investment and (B) an Investment that takes place in a series of related transactions contemplated by definitive agreements relating to such Investment (such as an Investment in a form similar to a reverse like-kind exchange transaction as contemplated by Rev. Proc. 2000-37, 2000-2 C.B. 308) will be permitted pursuant to this Section 7.10(a) so long as the completion of such series of related transactions (as opposed to the completion of any individual component) would result in an Investment permitted under this Section 7.10(a). Acquisitions and Investments made of the type described in the case of Section 7.10(a)(ii), ) that are made during a period in the fiscal year when the Leverage Ratio is less than 6.00:1.00, shall, in the event that the Leverage Ratio subsequently exceeds 6.00:1.006.00:1.00 during such fiscal year, be counted against the basket provided for in Section 7.10(a)(ii) for such fiscal year for purposes of determining basket availability only.
(b) At any time that the Leverage Ratio is less than 6.00:1.00, the Company and the Guarantors its Subsidiaries shall be permitted to make the Investments and acquisitions described in Section 7.10(a) so long as at the time of such Investments or acquisitions, the Financial Condition Test is satisfied.
Appears in 2 contracts
Samples: Credit Agreement (Host Hotels & Resorts L.P.), Credit Agreement (Host Hotels & Resorts, Inc.)
Acquisitions; Investments. a) The Company will not, and will not permit its Subsidiaries to:
(i) at any time that the Leverage Ratio equals or exceeds 6.00:1:00, acquire ownership of Hotel Properties or other real estate or other assets constituting Related Businesses (or all or a portion of the Capital Stock of a Person owning such real estate or Related Businesses (including (in either case) by way of merger)) if, at the time of such acquisition, the Financial Condition Test is not satisfied; or;
(ii) at any time that the Leverage Ratio equals or exceeds 6.00:1:00, acquire ownership of non-real estate assets (other than Permitted Investments or inventory, materials, equipment and other personal property used in the ordinary course of business) (or all or a portion of the Capital Stock of a Person owning primarily such non-real estate assets (including by way of merger or Investment)) if (A) at the time of such acquisition, the Financial Condition Test is not satisfied or (B) after giving effect to such acquisition, the aggregate amount of all such non-real estate assets acquired in the then current fiscal year of the Company pursuant to this Section 7.10(a)(ii) would exceed 1% of the Adjusted Total Assets, determined at the time such acquisition is made (with any unused Roll Forward Amount from one fiscal year increasing the amount available in subsequent fiscal years); provided that the amount of acquisitions made pursuant to this Section 7.10(a)(ii) shall be calculated net of reductions of such investments resulting from repayments, dividends or other distributions to the Company or any Subsidiary from such investments;
(iii) at any time that the Guaranty Requirement is in effect, in the case of the Company or any Guarantor, subject to the last paragraph of this Section 7.10(a), make any Investment in a Person that, prior to the consummation of such Investment, is a Subsidiary of the Company that is not a Guarantor if (A) the aggregate amount of all Investments made in the then current fiscal year of the Company pursuant to this Section 7.10(a)(iii) would exceed 10% of the Adjusted Total Assets, determined at the time such Investment is made (with any unused Roll Forward Amount from one fiscal year increasing the amount available in subsequent fiscal years) or (B) at the time of such Investment, the Financial Condition Test is not satisfied; provided that the amount of Investments made pursuant to this Section 7.10(a)(iii) shall be calculated net of (x) any payments by Subsidiaries (other than Guarantors) of obligations owed to the Company or Guarantors, (y) amounts invested in Subsidiaries (other than Guarantors) to provide minimum capital to maintain the existence of Taxable REIT Subsidiaries and (z) distributions from Subsidiaries (other than Guarantors) to the Company (or Guarantors); and provided, further that the foregoing shall not prevent the Company or any Guarantor from making Investments, directly or indirectly, in Subsidiaries that are Approved Lessees to the extent necessary, in the reasonable judgment of the Company, to maintain HHRI’s status as a real estate investment trust under the Code; and
(iv) at any time the Guaranty Requirement is in effect, subject to the last paragraph of this Section 7.10(a), make any Investment in a Person that, prior to the consummation of such Investment, is not a Subsidiary if (A) the aggregate amount of all Investments made in the then current fiscal year of the Company pursuant to this Section 7.10(a)(iv) would exceed 10% of the Adjusted Total Assets, determined at the time such Investment is made (with any unused Roll Forward Amount from one fiscal year increasing the amount available in subsequent fiscal years) or (B) at the time of such Investment, the Financial Condition Test is not satisfied, provided that the amount of Investments made pursuant to this Section 7.10(a)(iv) shall be calculated net of (x) any payments by any such non-Subsidiary of obligations owed to the Company or Guarantors, and (y) distributions from any such non-Subsidiary to the Company or Guarantors. Notwithstanding anything to the contrary in this Section 7.10, for the purposes of determining whether an Investment complies with the requirements of this Section 7.10(a), (A) compliance shall be tested as of the date that the Company or any Subsidiary of the Company enters into a binding contractual commitment relating to such Investment and Investment, (B) an Investment that takes place in a series of related transactions contemplated by definitive agreements relating to such Investment (such as an Investment in a form similar to a reverse like-kind exchange transaction as contemplated by Rev. Proc. 2000-37, 2000-2 C.B. 308) will be permitted pursuant to this Section 7.10(a) so long as the completion of such series of related transactions (as opposed to the completion of any individual component) would result in an Investment permitted under this Section 7.10(a), and (C) an Investment otherwise permitted by Sections 7.10(a)(i) and (a)(ii) shall not be subject to the requirements of Sections 7.10(a)(iii) or (a)(iv) if:
(A) such Investment is in a Person that, following the consummation of such Investment, (x) is a Guarantor or becomes a Guarantor in accordance with the requirements of Section 6.14, or (y) is not a Guarantor or does not become a Guarantor as described in the preceding clause (x) solely by virtue of the provisions of Section 6.14(a);
(B) such Investment is a Permitted Investment; or
(C) such Investment is in a Person that is not a Subsidiary, but only to the extent that the consideration paid to acquire such Investment consists of the equity interests in another Person that is not a Subsidiary. Acquisitions and Investments made (x) in the case of Section 7.10(a)(ii), during a period when the Leverage Ratio is less than 6.00:1.00, shall, in the event that the Leverage Ratio subsequently exceeds 6.00:1.00, be counted against the basket provided for in Section 7.10(a)(ii) for purposes of determining basket availability only and (y) in the case of Section 7.10(a)(iii) and 7.10(a)(iv), during a period when the Guaranty Requirement is not in effect, shall, in the event that the Guaranty Requirement is subsequently in effect, be counted against the baskets provided for in Sections 7.10(a)(iii) and 7.10(a)(iv), as applicable, for purposes of determining basket availability only.
b) At any time that the Leverage Ratio is less than 6.00:1.00, the Company and the Guarantors shall be permitted to make the Investments and acquisitions described in Section 7.10(a) so long as (i) such Investments and acquisitions do not, directly or indirectly, constitute a Restricted Payment that is prohibited under the Governing Senior Note Indenture and (ii) at the time of such Investments or acquisitions, the Financial Condition Test is satisfied.
Appears in 2 contracts
Samples: Credit Agreement (Host Hotels & Resorts, Inc.), Credit Agreement (Host Hotels & Resorts, Inc.)
Acquisitions; Investments. (a) The Company At any time that the Leverage Ratio equals or exceeds 6.00:1:00, the U.S. Borrower will not, and will not permit its Subsidiaries to:
(i) at any time that the Leverage Ratio equals or exceeds 6.00:1:00, acquire ownership of Hotel Properties or other real estate or other assets constituting Related Businesses (or all or a portion of the Capital Stock of a Person owning such real estate or Related Businesses (including (in either case) by way of merger)) if, at the time of such acquisition, the Financial Condition Test is not satisfied; or;
(ii) at any time that the Leverage Ratio equals or exceeds 6.00:1:00, acquire ownership of non-real estate assets (other than Permitted Investments or inventory, materials, equipment and other personal property used in the ordinary course of business) (or all or a portion of the Capital Stock of a Person owning primarily such non-real estate assets (including by way of merger or Investment)) if (A) at the time of such acquisition, the Financial Condition Test is not satisfied or (B) after giving effect to such acquisition, the aggregate amount of all such non-real estate assets acquired in the then current fiscal year of the Company U.S. Borrower pursuant to this Section 7.10(a)(ii11.10(a)(ii) would exceed 1% of the Adjusted Total Assets, determined at the time such acquisition is made (with any unused Roll Forward Amount from one fiscal year increasing the amount available in subsequent fiscal years); provided that the amount of acquisitions made pursuant to this Section 7.10(a)(ii11.10(a)(ii) shall be calculated net of reductions of such investments resulting from repayments, dividends or other distributions to the Company U.S. Borrower or any Subsidiary Guarantor from such investments;
(iii) in the case of the U.S. Borrower or any Guarantor, subject to the last paragraph of this Section 11.10(a), make any Investment in a Person that, prior to the consummation of such Investment, is a Subsidiary of the U.S. Borrower that is not a Guarantor if (A), the aggregate amount of all Investments made in the then current fiscal year of the U.S. Borrower pursuant to this Section 11.10(a)(iii) would exceed 2% of the Adjusted Total Assets, determined at the time such Investment is made (with any unused Roll Forward Amount from one fiscal year increasing the amount available in subsequent fiscal years) or (B) at the time of such Investment, the Financial Condition Test is not satisfied; provided that the amount of Investments made pursuant to this Section 11.10(a)(iii) shall be calculated net of (x) any payments by Subsidiaries (other than Guarantors) of obligations owed to the U.S. Borrower or Guarantors, (y) amounts invested in Subsidiaries (other than Guarantors) to provide minimum capital to maintain the existence of Taxable REIT Subsidiaries and (z) distributions from Subsidiaries (other than Guarantors) to the U.S. Borrower or Guarantors); and provided, further that the foregoing shall not prevent the U.S. Borrower or any Guarantor from making Investments, directly or indirectly, in Subsidiaries that are Approved Lessees to the extent necessary, in the reasonable judgment of the U.S. Borrower, to maintain HHRI’s status as a real estate investment trust under the Code; and
(iv) subject to the last paragraph of this Section 11.10(a), make any Investment in a Person that, prior to the consummation of such Investment, is not a Subsidiary if (A), the aggregate amount of all Investments made in the then current fiscal year of the U.S. Borrower pursuant to this Section 11.10(a)(iv) would exceed 2% of the Adjusted Total Assets, determined at the time such Investment is made (with any unused Roll Forward Amount from one fiscal year increasing the amount available in subsequent fiscal years) or (B) at the time of such Investment, the Financial Condition Test is not satisfied, provided that the amount of Investments made pursuant to this Section 11.10(a)(iv) shall be calculated net of (x) any payments by any such non-Subsidiary of obligations owed to the U.S. Borrower or Guarantors, and (y) distributions from any such non-Subsidiary to the U.S. Borrower or Guarantors. Notwithstanding anything to the contrary in this Section 7.1011.10(a), for the purposes of determining whether an Investment complies with the requirements of this Section 7.10(a11.10(a), (A) compliance shall be tested as of the date that the Company U.S. Borrower or any Subsidiary of the Company U.S. Borrower enters into a binding contractual commitment relating to such Investment and Investment, (B) an Investment that takes place in a series of related transactions contemplated by definitive agreements relating to such Investment (such as an Investment in a form similar to a reverse like-kind exchange transaction as contemplated by Rev. Proc. 2000-37, 2000-2 C.B. 308) will be permitted pursuant to this Section 7.10(a11.10(a) so long as the completion of such series of related transactions (as opposed to the completion of any individual component) would result in an Investment permitted under this Section 7.10(a11.10(a), and (C) an Investment otherwise permitted by Section 11.10(a)(i) or (a)(ii) shall not be subject to the requirements of Sections 11.10(a)(iii) and (a)(iv) if:
(I) such Investment is in a Person that, following the consummation of such Investment, (x) is a Guarantor or becomes a Guarantor in accordance with the requirements of Section 10.15, or (y) is not a Guarantor or does not become a Guarantor as described in the preceding clause (x) solely by virtue of the provisions of Section 10.15(a);
(II) such Investment is a Permitted Investment; or
(III) such Investment is in a Person that is not a Subsidiary, but only to the extent that the consideration paid to acquire such Investment consists of the equity interests in another Person that is not a Subsidiary. Acquisitions and Investments made in the case of Section 7.10(a)(ii), during a period when the Leverage Ratio is less than 6.00:1.00, 6.00:1.00 shall, in the event that the Leverage Ratio subsequently exceeds 6.00:1.00, be counted against the basket baskets provided for in this Section 7.10(a)(ii11.10(a) (as applicable) for purposes of determining basket availability only.
(b) At any time that the Leverage Ratio is less than 6.00:1.00, the Company U.S. Borrower and the Guarantors shall be permitted to make the Investments and acquisitions described in Section 7.10(a11.10(a) so long as (i) such Investments and acquisitions do not, directly or indirectly, constitute a Restricted Payment that is prohibited under the Governing Senior Note Indenture and (ii) at the time of such Investments or acquisitions, the Financial Condition Test is satisfied.
Appears in 2 contracts
Samples: Credit Agreement (Host Hotels & Resorts, Inc.), Credit Agreement (Host Hotels & Resorts L.P.)
Acquisitions; Investments. (a) The Company At any time that the Leverage Ratio equals or exceeds 6.00:1:00, the U.S. Borrower will not, and will not permit its Subsidiaries to:
(i) at any time that the Leverage Ratio equals or exceeds 6.00:1:00, acquire ownership of Hotel Properties or other real estate or other assets constituting Related Businesses (or all or a portion of the Capital Stock of a Person owning such real estate or Related Businesses (including (in either case) by way of merger)) if, at the time of such acquisition, the Financial Condition Test is not satisfied; or;
(ii) at any time that the Leverage Ratio equals or exceeds 6.00:1:00, acquire ownership of non-real estate assets (other than Permitted Investments or inventory, materials, equipment and other personal property used in the ordinary course of business) (or all or a portion of the Capital Stock of a Person owning primarily such non-real estate assets (including by way of merger or Investment)) if (A) at the time of such acquisition, the Financial Condition Test is not satisfied or (B) after giving effect to such acquisition, the aggregate amount of all such non-real estate assets acquired in the then current fiscal year of the Company U.S. Borrower pursuant to this Section 7.10(a)(ii11.10(a)(ii) would exceed 1% of the Adjusted Total Assets, determined at the time such acquisition is made (with any unused Roll Forward Amount from one fiscal year increasing the amount available in subsequent fiscal years); provided that the amount of acquisitions made pursuant to this Section 7.10(a)(ii11.10(a)(ii) shall be calculated net of reductions of such investments resulting from repayments, dividends or other distributions to the Company U.S. Borrower or any Subsidiary Guarantor from such investments;
(iii) in the case of the U.S. Borrower or any Guarantor, subject to the last paragraph of this Section 11.10(a), make any Investment in a Person that, prior to the consummation of such Investment, is a Subsidiary of the U.S. Borrower that is not a Guarantor if (A), the aggregate amount of all Investments made in the then current fiscal year of the U.S. Borrower pursuant to this Section 11.10(a)(iii) would exceed 2% of the Adjusted Total Assets, determined at the time such Investment is made (with any unused Roll Forward Amount from one fiscal year increasing the amount available in subsequent fiscal years) or (B) at the time of such Investment, the Financial Condition Test is not satisfied; provided that the amount of Investments made pursuant to this Section 11.10(a)(iii) shall be calculated net of (x) any payments by Subsidiaries (other than Guarantors) of obligations owed to the U.S. Borrower or Guarantors, (y) amounts invested in Subsidiaries (other than Guarantors) to provide minimum capital to maintain the existence of Taxable REIT Subsidiaries and (z) distributions from Subsidiaries (other than Guarantors) to the U.S. Borrower or Guarantors); and provided, further that the foregoing shall not prevent the U.S. Borrower or any Guarantor from making Investments, directly or indirectly, in Subsidiaries that are Approved Lessees to the extent necessary, in the reasonable judgment of the U.S. Borrower, to maintain HMC’s status as a real estate investment trust under the Code; and
(iv) subject to the last paragraph of this Section 11.10(a), make any Investment in a Person that, prior to the consummation of such Investment, is not a Subsidiary if (A), the aggregate amount of all Investments made in the then current fiscal year of the U.S. Borrower pursuant to this Section 11.10(a)(iv) would exceed 2% of the Adjusted Total Assets, determined at the time such Investment is made (with any unused Roll Forward Amount from one fiscal year increasing the amount available in subsequent fiscal years) or (B) at the time of such Investment, the Financial Condition Test is not satisfied, provided that the amount of Investments made pursuant to this Section 11.10(a)(iv) shall be calculated net of (x) any payments by any such non-Subsidiary of obligations owed to the U.S. Borrower or Guarantors, and (y) distributions from any such non-Subsidiary to the U.S. Borrower or Guarantors. Notwithstanding anything to the contrary in this Section 7.1011.10(a), for the purposes of determining whether an Investment complies with the requirements of this Section 7.10(a11.10(a), (A) compliance shall be tested as of the date that the Company U.S. Borrower or any Subsidiary of the Company U.S. Borrower enters into a binding contractual commitment relating to such Investment and Investment, (B) an Investment that takes place in a series of related transactions contemplated by definitive agreements relating to such Investment (such as an Investment in a form similar to a reverse like-kind exchange transaction as contemplated by Rev. Proc. 2000-37, 2000-2 C.B. 308) will be permitted pursuant to this Section 7.10(a11.10(a) so long as the completion of such series of related transactions (as opposed to the completion of any individual component) would result in an Investment permitted under this Section 7.10(a). Acquisitions and Investments made in the case of Section 7.10(a)(ii11.10(a), during a period when the Leverage Ratio is less than 6.00:1.00, shall, in the event that the Leverage Ratio subsequently exceeds 6.00:1.00, be counted against the basket provided for in Section 7.10(a)(iiand (C) for purposes of determining basket availability only.
b) At any time that the Leverage Ratio is less than 6.00:1.00, the Company and the Guarantors shall be an Investment otherwise permitted to make the Investments and acquisitions described in Section 7.10(a) so long as at the time of such Investments or acquisitions, the Financial Condition Test is satisfied.by
Appears in 2 contracts
Samples: Credit Agreement (Host Marriott L P), Credit Agreement (Host Marriott Corp/)
Acquisitions; Investments. (a) The Company will not, and will not permit its Subsidiaries to:
(i) at any time that the Leverage Ratio equals or exceeds 6.00:1:00, acquire ownership of Hotel Properties or other real estate or other assets constituting Related Businesses (or all or a portion of the Capital Stock of a Person owning such real estate or Related Businesses (including (in either case) by way of merger)) if, at the time of such acquisition, the Financial Condition Test is not satisfied; or
(ii) at any time that the Leverage Ratio equals or exceeds 6.00:1:00, acquire ownership of non-real estate assets (other than Permitted Investments or inventory, materials, equipment and other personal property used in the ordinary course of business) (or all or a portion of the Capital Stock of a Person owning primarily such non-real estate assets (including by way of merger or Investment)) if (A) at the time of such acquisition, the Financial Condition Test is not satisfied or (B) after giving effect to such acquisition, the aggregate amount of all such non-real estate assets acquired in the then current fiscal year of the Company pursuant to this Section 7.10(a)(ii) would exceed 1% of the Adjusted Total Assets, determined at the time such acquisition is made (with any unused Roll Forward Amount from one fiscal year increasing the amount available in subsequent fiscal years); provided that the amount of acquisitions made pursuant to this Section 7.10(a)(ii) shall be calculated net of reductions of such investments resulting from repayments, dividends or other distributions to the Company or any Subsidiary from such investments. Notwithstanding anything to the contrary in this Section 7.10, for the purposes of determining whether an Investment complies with the requirements of this Section 7.10(a), (A) compliance shall be tested as of the date that the Company or any Subsidiary of the Company enters into a binding contractual commitment relating to such Investment and (B) an Investment that takes place in a series of related transactions contemplated by definitive agreements relating to such Investment (such as an Investment in a form similar to a reverse like-kind exchange transaction as contemplated by Rev. Proc. 2000-37, 2000-2 C.B. 308) will be permitted pursuant to this Section 7.10(a) so long as the completion of such series of related transactions (as opposed to the completion of any individual component) would result in an Investment permitted under this Section 7.10(a). Acquisitions and Investments made of the type described in the case of Section 7.10(a)(ii), ) that are made during a period in the fiscal year when the Leverage Ratio is less than 6.00:1.00, shall, in the event that the Leverage Ratio subsequently exceeds 6.00:1.006.00:1.00 during such fiscal year, be counted against the basket provided for in Section 7.10(a)(ii) for such fiscal year for purposes of determining basket availability only.
(b) At any time that the Leverage Ratio is less than 6.00:1.00, the Company and the Guarantors its Subsidiaries shall be permitted to make the Investments and acquisitions described in Section 7.10(a) (the “Subject Acquisitions”) so long as at the time of such Investments or acquisitions, the Financial Condition Test is satisfied.
Appears in 1 contract
Acquisitions; Investments. a) The Company Borrower will not, and nor will not it permit its Subsidiaries any Subsidiary to:
, (i) at make or commit to make any time that the Leverage Ratio equals Acquisitions or exceeds 6.00:1:00, acquire ownership any other acquisition of Hotel Properties or other real estate or other assets constituting Related Businesses (or all or a portion substantially all of the Capital Stock assets of a Person owning such real estate another Person, or Related Businesses (of any business or division of any Person, including (in either case) without limitation by way of merger)) if, at the time of such acquisitionconsolidation or other combination, the Financial Condition Test is not satisfied; or
(ii) at purchase or acquire, or make any time that commitment to purchase or acquire, any equity interests or any other securities of, or any interest in any Person, or (iii) make or purchase any advance, loan, extension of credit or capital contribution to or any other investment in, any Person (the Leverage Ratio equals items in (i), (ii) and (iii) above, collectively, referred to as “Investments”), except:
(a) One or exceeds 6.00:1:00, acquire ownership more Permitted Acquisitions;
(b) Cash and Cash Equivalents or other readily marketable Investments which are reasonably acceptable to Lender;
(c) Investments in the form of non-real estate assets (other than Permitted Investments or inventory, materials, equipment loans and other personal property used advances made or securities purchased or held in the ordinary course of business) (or all or a portion the banking business of the Capital Stock Subsidiary Bank(s) in accordance with safe and sound banking practices and applicable Laws and regulations;
(d) Investments by Borrower or any Subsidiary in their respective Subsidiaries, or by a Subsidiary in the Borrower, in the form of capital contributions and investments in the form of capital contributions, loans or extensions of credit by any Subsidiary in any of its Subsidiaries, in the aggregate amount not to exceed $10,000,000;
(e) Investments existing on the Effective Date and set forth on Schedule 7.4 and non-material changes thereto;
(f) Investments held by Subsidiaries acquired after the Effective Date in a Permitted Acquisition or of a Person owning primarily merged into the Borrower or into a Subsidiary in a Permitted Acquisition to the extent such investments were not made in contemplation of or in connection with such Permitted Acquisition and were in existence on the date of such Permitted Acquisition;
(g) Investments consisting of non-real estate assets cash loans or non-cash advances made by Borrower to its officers, directors and employees or those of one of its Subsidiaries which are used by such Persons to purchase promptly thereafter equity interests or options (including by way of merger or Investment)like instruments) if in Borrower;
(Ah) at the time of such acquisitionadvances to management personnel, the Financial Condition Test is not satisfied or (B) after giving effect agents and employees for travel advances and other similar cash advances made to such acquisition, the aggregate amount of all such non-real estate assets acquired Persons in the then current fiscal year ordinary course of business consistent with past practices, and
(i) other Investments by the Company pursuant to this Section 7.10(a)(ii) would exceed 1% of the Adjusted Total Assets, determined at the time such acquisition is made (with any unused Roll Forward Amount from one fiscal year increasing the amount available in subsequent fiscal years); provided that the amount of acquisitions made pursuant to this Section 7.10(a)(ii) shall be calculated net of reductions of such investments resulting from repayments, dividends or other distributions to the Company Borrower or any Subsidiary from such investments. Notwithstanding anything to the contrary in this Section 7.10, for the purposes of determining whether an Investment complies with the requirements of this Section 7.10(a), (A) compliance shall be tested as of the date that the Company or any Subsidiary of the Company enters into a binding contractual commitment relating to such Investment and (B) an Investment that takes place in a series of related transactions contemplated by definitive agreements relating to such Investment (such as an Investment in a form similar to a reverse like-kind exchange transaction as contemplated by Rev. Proc. 2000-37, 2000-2 C.B. 308) will be permitted pursuant to this Section 7.10(a) so long as the completion of such series of related transactions (as opposed to the completion of any individual component) would result in an Investment permitted under this Section 7.10(a). Acquisitions and Investments made in the case of Section 7.10(a)(ii), during a period when the Leverage Ratio is less than 6.00:1.00, shall, in the event that the Leverage Ratio subsequently exceeds 6.00:1.00, be counted against the basket provided for in Section 7.10(a)(ii) for purposes of determining basket availability onlyaggregate amount not to exceed $10,000,000.
b) At any time that the Leverage Ratio is less than 6.00:1.00, the Company and the Guarantors shall be permitted to make the Investments and acquisitions described in Section 7.10(a) so long as at the time of such Investments or acquisitions, the Financial Condition Test is satisfied.
Appears in 1 contract
