Advances; Investments; Loans. Parent will not, and will not permit any of its Subsidiaries to, lend money or extend credit or make advances to any Person, or purchase or acquire any stock, obligations or securities of, or any other interest in, or make any capital contribution to, any Person, or purchase or own a futures contract or otherwise become liable for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract, or hold any cash or Cash Equivalents, except: (a) Parent and its Subsidiaries may hold or invest in cash and Cash Equivalents, PROVIDED that during any time that Revolving Loans or Swingline Loans are outstanding the aggregate amount of cash and Cash Equivalents held by Parent and its Subsidiaries shall not exceed $1,500,000 for any period of three consecutive Business Days; (b) the Borrower and its Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (including the dating of receivables) of the Borrower or such Subsidiary; (c) the Borrower and its Subsidiaries may acquire and own investments (including debt obligations) received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, Customers and suppliers arising in the ordinary course of business; (d) interest Rate Protection Agreements entered into in compliance with Section 9.04(c) shall be permitted; (e) advances, loans and investments in existence on the Initial Borrowing Date and listed on Annex VI shall be permitted, without giving effect to any additions thereto or replacements thereof; (i) the Borrower may make intercompany loans and advances to any Subsidiary Guarantor, (ii) any Subsidiary Guarantor may make intercompany loans and advances to the Borrower or any other Subsidiary Guarantor and (iii) the Borrower may make intercompany loans to the Parent for the purpose of making payments permitted pursuant to Section 9.06(ii) (loans pursuant to clauses (i) (ii) and (iii) of this clause (f) collectively, "Intercompany Loans"), PROVIDED, that (x) each Intercompany Loan shall be evidenced by an Intercompany Note and (y) each such Intercompany Note shall be pledged to the Collateral Agent pursuant to the Pledge Agreement; (g) loans and advances by the Borrower and its Subsidiaries to employees of Parent and its Subsidiaries for moving and travel expenses and other similar expenses, in each case incurred in the ordinary course of business, in an aggregate outstanding principal amount not to exceed $500,000 at any time (determined without regard to any write-downs or write-offs of such loans and advances), shall be permitted; PROVIDED that up to $300,000 at any time of such outstanding principal amount may constitute loans to employees for purposes of exercising rights to purchase common stock of Parent and/or to make payments with respect to any tax liabilities. (h) Parent may acquire and hold obligations of one or more officers or other employees of Parent or its Subsidiaries in connection with such officers' or employees' acquisition of shares of Parent Common Stock, so long as no cash is actually advanced by Parent or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations; (i) (x) Parent, Holdings, and Tri-Star Holdings may make equity contributions, directly in the case of Tri-Star Holdings, or by way of downstream contributions in the case of Parent and or Holdings to the capital of the Borrower and (y) Tri-Star Holdings may make Tri-Star Holdings Asset Contributions; (j) the Borrower may make Permitted Acquisitions in accordance with the relevant requirements of Section 8.14 and the component definitions as used therein; (k) Parent and its Subsidiaries may own the capital stock of their respective Subsidiaries created or acquired in accordance with the terms of this Agreement; (l) the Borrower may make intercompany loans (collectively, the "Intercompany Acquisition Loans") to enable Tri-Star Holdings to pay the merger consideration owing pursuant to the Merger Agreement, so long as (x) Tri-Star Holdings utilizes all of the proceeds of such loans to consummate the merger pursuant to the Merger Agreement and (y) such loans are extinguished, to the extent of the value of the assets contributed, immediately following any Tri-Star Holdings Asset Contribution; (m) the Borrower may make investments in Wholly Owned Foreign Subsidiaries which are not Subsidiary Guarantors not to exceed $10,000,000 in the aggregate, net of any repayments to the Borrower; and (n) in addition to investments permitted by clauses (a) through (m) of this Section 9.05, the Borrower and its Subsidiaries may make additional loans, advances and investments to or in a Person not an Affiliate in an aggregate amount for all loans, advances and investments made pursuant to this clause (n) (determined without regard to any write-downs or write-offs thereof), net of cash repayments of principal in the case of loans and cash equity returns (whether as a dividend or redemption) in the case of equity investments, not to exceed $100,000.
Appears in 1 contract
Advances; Investments; Loans. Parent The Borrower will not, and nor ---------------------------- will not the Borrower permit any of its Subsidiaries to, lend money or extend credit or make advances to any Person, or purchase or acquire any stock, obligations or securities of, or any other interest in, or make any capital contribution to, any Person, or purchase or own a futures contract or otherwise become liable for the purchase or sale of currency or other commodities at a future date in the nature of a futures contractcontract (any of the foregoing, or hold any cash or Cash Equivalentsan "Investment"), except:
(a) Parent the Borrower and its Subsidiaries may hold or invest in cash and Cash Equivalents, PROVIDED that during any time that Revolving Loans or Swingline Loans are outstanding the aggregate amount of cash and Cash Equivalents held by Parent and its Subsidiaries shall not exceed $1,500,000 for any period of three consecutive Business Days;
(b) the Borrower and its Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (including the dating of receivables) of the Borrower or such Subsidiary;
(c) the Borrower and its Subsidiaries may acquire and own investments (including debt obligationsobligations and equity securities) received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, Customers customers and suppliers arising in the ordinary course of business;
(d) interest Interest Rate Protection Agreements and Other Hedging Agreements entered into in compliance with Section 9.04(c) shall be permitted;
(e) advances, loans and investments in existence on the Initial Borrowing Effective Date and listed on Annex VI Schedule IX shall be permitted, without giving effect to any additions thereto or replacements thereof, it being understood that any additional Investments made with respect to such existing Investments shall be permitted only if independently justified under the other provisions of this Section 9.05;
(if) the Borrower any Credit Party may make intercompany loans and advances to any Subsidiary Guarantor, (ii) other Credit Party and any Subsidiary Guarantor Credit Party may make intercompany loans and advances to the Borrower or any other Foreign Subsidiary Guarantor and that is not a Credit Party (iii) the Borrower may make intercompany loans to the Parent for the purpose of making payments permitted pursuant to Section 9.06(ii) (loans pursuant to clauses (i) (ii) and (iii) of this clause (f) collectively, "Intercompany Loans"), PROVIDEDprovided, that (w) at no time shall -------- the aggregate outstanding principal amount of all -76- Intercompany Loans made pursuant to this clause (f) by the Credit Parties to Foreign Subsidiaries, when added to the amount of contributions, capitalizations and forgiveness theretofore made pursuant to Section 9.05(o) exceed $5,000,000 (determined without regard to any write-downs or write-offs of such loans and advances), (x) each Intercompany Loan in excess of $500,000 shall be evidenced by an Intercompany Note and Note, (y) each such Intercompany Note shall be pledged to the Collateral Agent pursuant to the Pledge Agreement;
(g) loans and advances by the Borrower and its Subsidiaries to employees employees, officers and directors of Parent the Borrower and its Subsidiaries for moving and travel expenses in connection with relocations, purchases by such employees of Borrower Common Stock or options or similar rights to purchase Borrower Common Stock and other similar expenses, in each case incurred in the ordinary course of businessbusiness purposes (including travel and entertainment expenses) shall be permitted, in an so long as the aggregate outstanding principal amount not to exceed $500,000 thereof at any time outstanding (determined without regard to any write-downs or write-offs of such loans and advances), ) shall be permitted; PROVIDED that up to not exceed $300,000 at any time of such outstanding principal amount may constitute loans to employees for purposes of exercising rights to purchase common stock of Parent and/or to make payments with respect to any tax liabilities.3,000,000;
(h) Parent the Borrower may acquire and hold obligations of one or more officers or other employees of Parent the Borrower or its Subsidiaries in connection with such officers' or employees' acquisition of shares of Parent Borrower Common Stock, so long as no cash is actually advanced by Parent the Borrower or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(i) (x) Parent, Holdings, and Tri-Star Holdings may make equity contributions, directly in the case of Tri-Star Holdings, or by way of downstream contributions in the case of Parent and or Holdings to the capital of the Borrower and (y) Tri-Star Holdings may make Tri-Star Holdings Asset Contributions;
(j) the Borrower any of its Subsidiaries may make Permitted Acquisitions in accordance with the relevant requirements of Section 8.14 8.13 and the component definitions as used therein;
(kj) Parent the Borrower and its Subsidiaries may own the capital stock of their respective Subsidiaries created or acquired in accordance with the terms of this Agreement;
(k) so long as no Default or Event of Default exists or would exist immediately after giving effect to the respective Investment, the Borrower and its Wholly-Owned Domestic Subsidiaries shall be permitted to make Investments in (x) any Joint Venture on any date in an amount not to exceed the Available Basket Amount on such date and (y) any Unrestricted Subsidiary on any date in an amount not to exceed the Available Basket Sub- Limit on such date (after giving effect to all prior and contemporaneous adjustments thereto, except as a result of such Investment), it being understood and agreed that, to the extent the Borrower or one or more other Credit Parties (after the respective Investment has been made) receives a cash return from the respective Joint Venture or Unrestricted Subsidiary of amounts previously invested pursuant to this clause (k) (which cash return may be made by way of repayment of principal in the case of loans and cash equity returns (whether as a distribution, dividend or redemption) in the case of equity investments) or a return in the form of an asset distribution from the respective Joint Venture or Unrestricted Subsidiary of any asset previously contributed pursuant to this clause (k) then the amount of such cash return of investment or the fair market value of such distributed asset (as determined in good faith by senior management of the Borrower), as the case may be, shall, upon the Administrative Agent's receipt of a certification of the amount of the return of investment from an Authorized Officer, apply to increase the Available Basket Amount and/or the Available Basket Sub- Limit, as applicable, provided that the aggregate amount of increases to -------- the Available Basket Amount and/or the Available Basket Sub-Limit described above shall not exceed the amount of returned investment and, in no event, shall the amount of the increases made to the Available Basket Amount and/or the Available Basket Sub-Limit in respect of any Investment exceed the amount previously invested pursuant to this clause (k);
(l) the Borrower and its Subsidiaries may make intercompany loans receive and hold promissory notes and other non-cash consideration received in connection with any asset sale permitted by Sections 9.02(d), (collectively, the "Intercompany Acquisition Loans"f) to enable Tri-Star Holdings to pay the merger consideration owing pursuant to the Merger Agreement, so long as (x) Tri-Star Holdings utilizes all of the proceeds of such loans to consummate the merger pursuant to the Merger Agreement and (y) such loans are extinguished, to the extent of the value of the assets contributed, immediately following any Tri-Star Holdings Asset Contributionl);
(m) the Borrower and its Subsidiaries may convey, lease, license, sell or otherwise transfer assets and properties to the extent permitted by Sections 9.02(b), (d), (g), (i), (j), (k) and (n);
(n) the Borrower and its Subsidiaries may make advances in the form of a prepayment of expenses, so long as such expenses were incurred in the ordinary course of business and are being paid in accordance with customary trade terms of the Borrower or such Subsidiary;
(o) the Borrower and its Domestic Subsidiaries may make cash capital contributions to Foreign Subsidiaries, and may capitalize or forgive any Indebtedness owed to them by a Foreign Subsidiary and outstanding under clause (f) of this Section 9.05, provided that the -------- aggregate amount of such contributions, capitalizations and forgiveness on and after the Effective Date, when added to the aggregate outstanding principal amount of Intercompany Loans made to Foreign Subsidiaries under such clause (f) (determined without regard to any write-downs or write-offs thereof) shall not exceed an amount equal to $10,000,000;
(p) the Borrower and its Subsidiaries may make the investments listed on, and in the amounts described on Schedule XII hereto;
(q) the Borrower and any Guarantor may make cash equity contributions to any Guarantor;
(r) the Borrower and its Subsidiaries may make investments in Wholly Owned Foreign Subsidiaries which are not Subsidiary Guarantors not to exceed $10,000,000 in connection with any joint venture with Cendant or affiliates thereof involving the aggregate, net of any repayments to the Borrowerresidential mortgage business; and
(ns) in addition to investments permitted by clauses (a) through (mr) of this Section 9.05, the Borrower and its Subsidiaries may make additional loans, advances and investments Investments to or in a Person not an Affiliate in an aggregate amount for all loans, advances and investments Investments made pursuant to this clause (ns) (determined without regard to any write-downs or write-offs thereof), net of cash repayments of principal in the case of loans loans, sale proceeds in the case of Investments in the form of debt instruments and cash equity returns (whether as a dividend distribution, dividend, redemption or redemptionsale) in the case of equity investments, not to exceed $100,00010,000,000.
Appears in 1 contract
Samples: Credit Agreement (NRT Inc)
Advances; Investments; Loans. Parent The US Borrower will not, and will not permit any of its Subsidiaries to, lend money or extend credit or make advances to any Person, or purchase or acquire any stock, obligations or securities of, or any other interest in, or guarantee any Indebtedness or other obligations of, or make any capital contribution to, any Person, or purchase or own a futures contract or otherwise become liable for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract, or hold any cash or Cash EquivalentsEquivalents (any of the foregoing, an “Investment”), except:
(a) Parent the US Borrower and any of its Subsidiaries may hold or invest in cash and Cash Equivalents, PROVIDED that during any time that Revolving Loans or Swingline Loans are outstanding the aggregate amount of cash and Cash Equivalents held by Parent and its Subsidiaries shall not exceed $1,500,000 for any period of three consecutive Business Days;
(bi) the US Borrower and any of its Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (including the dating of receivables) of the US Borrower or such SubsidiarySubsidiary and (ii) Wholly-Owned Foreign Subsidiaries may acquire and hold receivables owed by foreign account parties and obligors pursuant to Permitted Intercompany Receivables Sales, provided that the aggregate amount of all receivables acquired pursuant to this clause (ii) at any time outstanding does not exceed $100,000,000;
(c) the US Borrower and any of its Subsidiaries may acquire and own investments Investments (including debt obligationsobligations and equity securities) received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, Customers customers and suppliers arising in the ordinary course of business;
(d) interest Rate Protection Swap Agreements entered into in compliance with Section 9.04(c7.04(c) shall be permitted;
(e) advances, loans and investments in existence on the Initial Borrowing Original Effective Date and listed on Annex VI Schedule IX shall be permitted, without giving effect to any additions thereto or replacements thereof, it being understood that any additional Investments made with respect to such existing Investments shall be permitted only if independently permitted under the other provisions of this Section 7.05;
(if) the US Borrower and any of its Wholly-Owned Subsidiaries may make intercompany loans and advances to any Subsidiary Guarantorbetween and among one another (collectively, (ii) any Subsidiary Guarantor may make intercompany loans and advances to the Borrower or any other Subsidiary Guarantor and (iii) the Borrower may make intercompany loans to the Parent for the purpose of making payments permitted pursuant to Section 9.06(ii) (loans pursuant to clauses “Intercompany Loans”); provided that (i) (ii) and (iii) at no time shall the aggregate outstanding principal amount of all Intercompany Loans made pursuant to this clause (f) collectivelyby Credit Parties to Wholly-Owned Subsidiaries that are not Credit Parties, "Intercompany Loans"), PROVIDED, that (x) each Intercompany Loan shall be evidenced by an Intercompany Note and (y) each such Intercompany Note shall be pledged when added to the Collateral Agent aggregate amount of contributions, capitalizations and forgiveness theretofore made pursuant to the Pledge Agreement;
(gSection 7.05(n) loans and advances by the Borrower and its in respect of Wholly-Owned Foreign Subsidiaries to employees of Parent and its Subsidiaries for moving and travel expenses and other similar expensesthat are not Credit Parties, in each case incurred in the ordinary course of business, in an aggregate outstanding principal amount not to exceed $500,000 at any time 50,000,000 (determined without regard to any write-downs or write-offs of such loans and advances), (ii) (A) the Canadian Intercompany Loan, the UK Intercompany Loan and the Canadian LP Intercompany Loans shall be evidenced by the Canadian Intercompany Note, the UK Intercompany Note and the Canadian LP Intercompany Notes, respectively (which shall be pledged to the Collateral Agent (1) in the case of the UK Intercompany Note, pursuant to the US Collateral and Guaranty Agreement and (2) in the case of the Canadian Intercompany Note and the Canadian LP Intercompany Notes, pursuant to the applicable Foreign Pledge Agreement or Foreign Security Agreement), and (B) the obligations of the Canadian Borrower under the Canadian Intercompany Loan shall be Foreign Obligations guaranteed under the Foreign Guaranty, the obligations of the UK Borrower under the UK Intercompany Loan shall be Foreign Obligations guaranteed under the Foreign Guaranty and the obligations of Sideco under the Canadian LP Intercompany Loans shall be Foreign Obligations guaranteed under the Foreign Guaranty, (iii) if any such Intercompany Loan (other than the Canadian Intercompany Loan, UK Intercompany Loan and Canadian LP Intercompany Loans) made by a Credit Party is evidenced by a promissory note or other instrument, such promissory note or other instrument shall be an Intercompany Note and such Intercompany Note shall be pledged to the Collateral Agent to the extent required pursuant to the US Collateral and Guaranty Agreement or the applicable Foreign Pledge Agreement and (iv) each Intercompany Loan made either (A) to the US Borrower or (B) by a Wholly-Owned Foreign Subsidiary to a US Credit Party or by a Non-Credit Party to a Credit Party shall include (or, if not evidenced by an Intercompany Note, the books and records of the respective parties shall note that such Intercompany Loan is subject to) the subordination provisions attached as an Annex to the form of Intercompany Note;
(g) loans and advances by the US Borrower and any of its Subsidiaries to employees of the US Borrower and any of its Subsidiaries in the ordinary course of business and for bona fide business purposes (including travel and entertainment expenses) shall be permitted; PROVIDED that up to $300,000 , so long as the aggregate principal amount thereof at any time outstanding (determined without regard to any write-downs or write-offs of such outstanding principal amount may constitute loans to employees for purposes of exercising rights to purchase common stock of Parent and/or to make payments with respect to any tax liabilities.and advances) shall not exceed $5,000,000;
(h) Parent The US Borrower may acquire and hold obligations of one or more officers or other employees of Parent the US Borrower or any of its Subsidiaries in connection with such officers' ’ or employees' ’ acquisition of shares of Parent US Borrower Common Stock, so long as no cash is actually advanced by Parent the US Borrower or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(i) (x) Parent, Holdings, and Tri-Star Holdings may make equity contributions, directly in the case of Tri-Star Holdings, or by way of downstream contributions in the case of Parent and or Holdings to the capital of the US Borrower and (y) Triany of its Wholly-Star Holdings may make Tri-Star Holdings Asset Contributions;
(j) the Borrower Owned Subsidiaries may make Permitted Acquisitions in accordance with the relevant requirements of Section 8.14 6.13 and the component definitions as used thereinmay effect other acquisitions permitted by Section 7.02(t);
(kj) Parent The US Borrower and its Subsidiaries may own the capital stock of their respective Subsidiaries created or acquired in accordance with the terms of this AgreementAgreement (so long as all amounts invested in such Subsidiaries are independently permitted under another provision of this Section 7.05);
(k) the US Borrower and any of its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any asset sale permitted by Section 7.02(d), (l) or (q);
(l) the US Borrower and any of its Subsidiaries may make intercompany loans (collectivelyconvey, the "Intercompany Acquisition Loans") to enable Tri-Star Holdings to pay the merger consideration owing pursuant to the Merger Agreementlease, so long as (x) Tri-Star Holdings utilizes all of the proceeds of such loans to consummate the merger pursuant to the Merger Agreement license, sell or otherwise transfer or acquire assets and (y) such loans are extinguished, properties to the extent of the value of the assets contributedpermitted by Section 7.02(e), immediately following any Tri-Star Holdings Asset Contribution(f), (g), (h) or (k);
(m) the Borrower may make investments in Wholly Owned Foreign Subsidiaries which are not Subsidiary Guarantors not to exceed $10,000,000 in the aggregate, net of any repayments to the Borrower; and
(n) in addition to investments permitted by clauses (a) through (m) of this Section 9.05, the US Borrower and any of its Subsidiaries may make additional loans, advances and investments to or in a Person not an Affiliate in an aggregate amount for all loans, advances and investments made pursuant to this clause (n) (determined without regard to any write-downs or write-offs thereof), net of cash repayments of principal in the case form of loans and cash equity returns (whether a prepayment of expenses, so long as a dividend or redemption) such expenses were incurred in the case ordinary course of equity investments, not to exceed $100,000.business and are being paid in accordance with customary trade terms of the US Borrower or such Subsidiary;
Appears in 1 contract
Samples: Credit Agreement (Compass Minerals International Inc)
Advances; Investments; Loans. Parent No Credit Agreement Party will, nor will not, and will not permit any of its Subsidiaries to, directly or indirectly, lend money or extend credit or make advances to any Person, or purchase or acquire any stock, obligations or securities of, or any other interest Equity Interest in, or make any capital contribution to, any Person, or purchase or own a futures contract or otherwise become liable for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract, or hold any cash or Cash EquivalentsEquivalents (each of the foregoing an “Investment” and, collectively, “Investments”), except:
(ai) Parent (w) the U.S. Borrower and its Subsidiaries may acquire and hold or invest in cash and Cash Equivalents; (x) Intermediate Holdco may hold cash and Cash Equivalents (I) in a de minimis amount representing proceeds from the initial capital contribution made in connection with its formation and (II) representing the proceeds of any Indebtedness permitted to be incurred, PROVIDED that during or Dividends permitted to be received, by it pursuant to the terms of this Agreement, so long as (in the case of preceding subclause (II)) Intermediate Holdco utilizes such cash and/or Cash Equivalents within the time periods required, and for the purposes permitted, by this Agreement, (y) Corporate Holdco may hold cash and Cash Equivalents in a de minimis amount representing proceeds from the initial capital contribution made in connection with its formation and (z) Holdings may hold cash and Cash Equivalents (I) in a de minimis amount representing proceeds from the initial capital contribution made in connection with its formation and (II) representing the proceeds of any time that Revolving Loans Indebtedness permitted to be incurred, or Swingline Loans are outstanding Dividends permitted to be received, by it pursuant to the aggregate amount terms of this Agreement (including cash and Cash Equivalents held by Parent Holdings representing proceeds from the Wellbeing Project Financing), so long as (in the case of preceding subclause (II)) Holdings utilizes such cash or Cash Equivalents within the time periods required, and its Subsidiaries shall not exceed $1,500,000 for any period of three consecutive Business Daysthe purposes permitted, by this Agreement;
(bii) the U.S. Borrower and its Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (including the dating of receivables) of the U.S. Borrower or such Subsidiary;
(ciii) the U.S. Borrower and its Subsidiaries may acquire and own investments (including debt obligations) received in connection with the bankruptcy or reorganization of suppliers suppliers, trade creditors, licensees, licensors and customers and in good faith settlement of delinquent obligations of, and other disputes with, Customers suppliers, trade creditors, licensees, licensors and suppliers customers arising in the ordinary course of business;
(div) interest Interest Rate Protection Agreements entered into in compliance with Section 9.04(c9.04(b)(iii) shall be permitted;
(e) advances, loans and investments in existence on the Initial Borrowing Date and listed on Annex VI shall be permitted, without giving effect to any additions thereto or replacements thereof;
(i) the Borrower may make intercompany loans and advances to any Subsidiary Guarantor, (ii) any Subsidiary Guarantor may make intercompany loans and advances to the Borrower or any other Subsidiary Guarantor and (iii) the Borrower may make intercompany loans to the Parent for the purpose of making payments permitted pursuant to Section 9.06(ii) (loans pursuant to clauses (i) (ii) and (iii) of this clause (f) collectively, "Intercompany Loans"), PROVIDED, that (x) each Intercompany Loan shall be evidenced by an Intercompany Note and (y) each such Intercompany Note shall be pledged to the Collateral Agent pursuant to the Pledge Agreement;
(g) loans and advances by the Borrower and its Subsidiaries to employees of Parent and its Subsidiaries for moving and travel expenses and other similar expenses, in each case incurred in the ordinary course of business, in an aggregate outstanding principal amount not to exceed $500,000 at any time (determined without regard to any write-downs or write-offs of such loans and advances), shall be permitted; PROVIDED that up to $300,000 at any time of such outstanding principal amount may constitute loans to employees for purposes of exercising rights to purchase common stock of Parent and/or to make payments with respect to any tax liabilities.
(h) Parent may acquire and hold obligations of one or more officers or other employees of Parent or its Subsidiaries in connection with such officers' or employees' acquisition of shares of Parent Common Stock, so long as no cash is actually advanced by Parent or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(i) (x) Parent, Holdings, and Tri-Star Holdings may make equity contributions, directly in the case of Tri-Star Holdings, or by way of downstream contributions in the case of Parent and or Holdings to the capital of the Borrower and (y) Tri-Star Holdings may make Tri-Star Holdings Asset Contributions;
(j) the Borrower may make Permitted Acquisitions in accordance with the relevant requirements of Section 8.14 and the component definitions as used therein;
(k) Parent and its Subsidiaries may own the capital stock of their respective Subsidiaries created or acquired in accordance with the terms of this Agreement;
(l) the Borrower may make intercompany loans (collectively, the "Intercompany Acquisition Loans") to enable Tri-Star Holdings to pay the merger consideration owing pursuant to the Merger Agreement, so long as (x) Tri-Star Holdings utilizes all of the proceeds of such loans to consummate the merger pursuant to the Merger Agreement and (y) such loans are extinguished, to the extent of the value of the assets contributed, immediately following any Tri-Star Holdings Asset Contribution;
(m) the Borrower may make investments in Wholly Owned Foreign Subsidiaries which are not Subsidiary Guarantors not to exceed $10,000,000 in the aggregate, net of any repayments to the Borrower; and
(n) in addition to investments permitted by clauses (a) through (m) of this Section 9.05, the Borrower and its Subsidiaries may make additional loans, advances and investments to or in a Person not an Affiliate in an aggregate amount for all loans, advances and investments made pursuant to this clause (n) (determined without regard to any write-downs or write-offs thereof), net of cash repayments of principal in the case of loans and cash equity returns (whether as a dividend or redemption) in the case of equity investments, not to exceed $100,000.
Appears in 1 contract
Samples: Credit Agreement (Dole Food Co Inc)
Advances; Investments; Loans. Parent Holdings will not, and will not ----------------------------- permit any of its Subsidiaries to, lend money or extend credit or make advances to any Person, or purchase or acquire any stock, obligations or securities of, or any other interest in, or guarantee any Indebtedness or other obligations of, or make any capital contribution to, any Person, or purchase or own a futures contract or otherwise become liable for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract, or hold any cash or Cash EquivalentsEquivalents (any of the foregoing, an "Investment"), except:
(a) Parent the US Borrower and any of its Subsidiaries may hold or invest in cash and Cash Equivalents, PROVIDED that during any time that Revolving Loans or Swingline Loans are outstanding the aggregate amount of cash and Cash Equivalents held by Parent and its Subsidiaries shall not exceed $1,500,000 for any period of three consecutive Business Days;
(b) the US Borrower and any of its Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (including the dating of receivables) of the US Borrower or such Subsidiary;
(c) the US Borrower and any of its Subsidiaries may acquire and own investments (including debt obligationsobligations and equity securities) received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, Customers customers and suppliers arising in the ordinary course of business;
(d) interest Interest Rate Protection Agreements and Other Hedging Agreements entered into in compliance with Section 9.04(c7.04(c) shall be permitted;
(e) advances, loans and investments in existence on the Initial Borrowing Date and listed on Annex VI Schedule XI shall be permitted, without giving effect to any additions thereto or replacements thereof, it being understood that any additional Investments made with respect to such existing Investments shall be permitted only if independently permitted under the other provisions of this Section 7.05;
(if) the US Borrower and any of its Wholly-Owned Subsidiaries may make intercompany loans and advances to any Subsidiary Guarantor, between and among one another (ii) any Subsidiary Guarantor may make intercompany loans and advances to the Borrower or any other Subsidiary Guarantor and (iii) the Borrower may make intercompany loans to the Parent for the purpose of making payments permitted pursuant to Section 9.06(ii) (loans pursuant to clauses (i) (ii) and (iii) of this clause (f) collectively, "Intercompany Loans"), PROVIDED, ; provided that (xi) each Intercompany Loan at no time shall be evidenced by an Intercompany Note and (y) each such Intercompany Note shall be pledged to -------------------- -------- the Collateral Agent pursuant to the Pledge Agreement;
(g) loans and advances by the Borrower and its Subsidiaries to employees of Parent and its Subsidiaries for moving and travel expenses and other similar expenses, in each case incurred in the ordinary course of business, in an aggregate outstanding principal amount of all Intercompany Loans made pursuant to this clause (f) by Credit Parties to Wholly-Owned Subsidiaries that are not Credit Parties, when added to the aggregate amount of contributions, capitalizations and forgiveness theretofore made pursuant to Section 7.05(p) in respect of Wholly-Owned Foreign Subsidiaries that are not Credit Parties, exceed $500,000 at any time 25,000,000 (determined without regard to any write-downs or write-offs of such loans and advances), (ii) (A) the Canadian Intercompany Loan and the 134 UK Intercompany Loan shall each be evidenced by an Intercompany Note (the "Canadian Intercompany Note" and "UK Intercompany Note", respectively) ---------------------------- ---------------------- (which shall be pledged to the Collateral Agent pursuant to the US Collateral and Guaranty Agreement) and (B) the obligations of the Canadian Borrower under the Canadian Intercompany Loan shall be Foreign Obligations guaranteed under the Foreign Guaranty and the obligations of the UK Borrower under the UK Intercompany Loan shall be Foreign Obligations guaranteed under the Foreign Guaranty, (iii) if any such Intercompany Loan (other than the Canadian Intercompany Loan and the UK Intercompany Loan) made by a Credit Party is evidenced by a promissory note or other instrument, such promissory note or other instrument shall be an Intercompany Note and such Intercompany Note shall be pledged to the Collateral Agent to the extent required pursuant to the US Collateral and Guaranty Agreement or the applicable Foreign Pledge Agreement and (iv) each Intercompany Loan made either (A) to the US Borrower or (B) by a Wholly-Owned Foreign Subsidiary to a US Credit Party or by a Non-Credit Party to a Credit Party shall include (or, if not evidenced by an Intercompany Note, the books and records of the respective parties shall note that such Intercompany Loan is subject to) the subordination provisions attached as an Annex to the form of Intercompany Note;
(g) loans and advances by the US Borrower and any of its Subsidiaries to employees of Holdings and any of its Subsidiaries in the ordinary course of business and for bona fide business purposes (including travel and entertainment expenses) shall be permitted; PROVIDED that up to $300,000 , so long as the aggregate principal amount thereof at any time outstanding (determined without regard to any write-downs or write-offs of such outstanding principal amount may constitute loans to employees for purposes of exercising rights to purchase common stock of Parent and/or to make payments with respect to any tax liabilities.and advances) shall not exceed $5,000,000;
(h) Parent Holdings may acquire and hold obligations of one or more officers or other employees of Parent Holdings or any of its Subsidiaries in connection with such officers' or employees' acquisition of shares of Parent Holdings Common Stock, so long as no cash is actually advanced by Parent Holdings or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(i) (x) Parent, Holdings, and Tri-Star Holdings may make equity contributions, directly the Merger Transactions shall be permitted to be consummated in accordance with the case requirements of Tri-Star Holdings, or by way of downstream contributions in the case of Parent and or Holdings to the capital of the Borrower and (y) Tri-Star Holdings may make Tri-Star Holdings Asset ContributionsSection 3.08;
(j) the US Borrower and any of its Wholly-Owned Subsidiaries may make Permitted Acquisitions in accordance with the relevant requirements of Section 8.14 and the component definitions as used therein6.14;
(k) Parent Holdings and its Subsidiaries may own the capital stock of their respective Subsidiaries created or acquired in accordance with the terms of this AgreementAgreement (so long as all amounts invested in such Subsidiaries are independently permitted under another provision of this Section 7.05);
(l) the Borrower may make intercompany loans (collectively, the "Intercompany Acquisition Loans") to enable Tri-Star Holdings to pay the merger consideration owing pursuant to the Merger Agreement, so long as no Default or Event of Default exists or would exist immediately after giving effect to the respective Investment, the US Borrower and any of its Wholly-Owned Subsidiaries shall be permitted to make Investments in any Joint Venture or any 135 Unrestricted Subsidiary on any date in an amount not to exceed the Available Basket Amount on such date (x) Tri-Star Holdings utilizes after giving effect to all of the proceeds prior and contemporaneous adjustments thereto, except as a result of such loans to consummate the merger pursuant to the Merger Agreement Investment), it being understood and (y) such loans are extinguished, agreed that to the extent any Credit Party (after the respective Investment has been made) receives a cash return from the respective Joint Venture or Unrestricted Subsidiary of amounts previously invested pursuant to this clause (1), which cash return may be made by way of repayment of principal in the case of loans and cash equity returns (whether as a distribution, dividend or redemption) in the case of equity investments, or a return in the form of an asset distribution from the respective Joint Venture or Unrestricted Subsidiary of any asset previously contributed pursuant to this clause (1) (excluding the amounts of all Dividends paid by Unrestricted Subsidiaries that are referred to in clause (i) of the proviso to Section 7.06(g)), then the amount of such cash return of investment or the fair market value of such distributed asset (as determined in good faith by senior management of Holdings), as the assets contributedcase may be, immediately following shall, upon the Administrative Agent's receipt of a certification of the amount of the return of investment from an Authorized Officer of Holdings, apply to increase the Available Basket Amount as provided in the definition of Available Basket Amount; provided -------- that the aggregate amount of increases to the Available Basket Amount described above shall not exceed the amount of returned investment and, in no event, shall the amount of the increases made to the Available Basket Amount in respect of any Tri-Star Holdings Asset ContributionInvestment exceed the amount previously invested pursuant to this clause (1);
(m) the US Borrower and any of its Subsidiaries may make investments receive and hold promissory notes and other non-cash consideration received in Wholly Owned Foreign Subsidiaries which are not Subsidiary Guarantors not to exceed $10,000,000 in the aggregate, net of connection with any repayments to the Borrower; andasset sale permitted by Section 7.02(d) and (m);
(n) the US Borrower and any of its Subsidiaries may convey, lease, license, sell or otherwise transfer or acquire assets and properties to the extent permitted by Section 7.02(e), (f), (g), (h) and (1);
(o) the US Borrower and any of its Subsidiaries may make advances in the form of a prepayment of expenses, so long as such expenses were incurred in the ordinary course of business and are being paid in accordance with customary trade terms of the US Borrower or such Subsidiary;
(p) the US Borrower and its Wholly-Owned Subsidiaries may make cash capital contributions to their respective Wholly-Owned Subsidiaries, and may capitalize or forgive any Indebtedness owed to them by a Wholly-Owned Foreign Subsidiary and outstanding under clause (f) of this Section 7.05; provided that the aggregate amount of such contributions, capitalizations and forgiveness on and after the Effective Date made to Wholly-Owned Foreign Subsidiaries that are not Credit Parties, when added to the aggregate outstanding principal amount of Intercompany Loans made to Wholly-Owned Foreign Subsidiaries that are not Credit Parties under such clause (f) (determined without regard to any write-downs or write-offs thereof) shall not exceed an amount equal to $25,000,000; 136
(q) in addition to investments Investments permitted by clauses (a) through (mp) of this Section 9.057.05, the US Borrower and any of its Subsidiaries may make additional loans, advances and investments other Investments to or in a Person not an Affiliate in an aggregate amount for all loans, advances and investments other Investments made pursuant to this clause (nq) (determined without regard to any write-downs or write-offs thereof), net of cash repayments of principal in the case of loans loans, sale proceeds in the case of Investments in the form of debt instruments and cash equity returns (whether as a dividend distribution, dividend, redemption or redemptionsale) in the case of equity investments, not to exceed $100,00035,000,000 at any time outstanding; and
(r) the US Borrower and any of its Subsidiaries may guarantee any Indebtedness or other obligations of another Person to the extent expressly permitted under clauses (a), (f), (g), (k) or (p) of Section 7.04 or clause (d) of Section 7.04 to the extent such guaranty exists on the date of the applicable Permitted Acquisition.
Appears in 1 contract
Samples: Credit Agreement (GSL Corp)
Advances; Investments; Loans. Parent No Credit Agreement Party will, nor will not, and will not permit any of its Subsidiaries to, directly or indirectly, lend money or extend credit or make advances to any Person, or purchase or acquire any stock, obligations or securities of, or any other interest Equity Interest in, or make any capital contribution to, any Person, or purchase or own a futures contract or otherwise become liable for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract, or hold any cash or Cash EquivalentsEquivalents (each of the foregoing an “Investment” and, collectively, “Investments”), except:
(ai) Parent (w) the Borrower and its Subsidiaries may acquire and hold or invest in cash and Cash Equivalents; provided, PROVIDED however, that during at any time that Revolving Loans or Swingline Loans are outstanding a Loan is outstanding, the aggregate amount of Unrestricted Cash held by any the Borrower and its Domestic Subsidiaries shall not exceed $25,000,000 for any period of five consecutive Business Days, (x) Intermediate Holdco may hold cash and Cash Equivalents (I) in a de minimis amount representing proceeds from the initial capital contribution made in connection with its formation and (II) representing the proceeds of any Indebtedness permitted to be incurred, or Dividends permitted to be received, by it pursuant to the terms of this Agreement, so long as (in the case of preceding subclause (II)) Intermediate Holdco utilizes such cash and/or Cash Equivalents within the time periods required, and for the purposes permitted, by this Agreement, (y) Corporate Holdco may hold cash and Cash Equivalents in a de minimis amount representing proceeds from the initial capital contribution made in connection with its formation and (z) Holdings may hold cash and Cash Equivalents (I) in a de minimis amount representing proceeds from the initial capital contribution made in connection with its formation and (II) representing the proceeds of any Indebtedness permitted to be incurred, or Dividends permitted to be received, by it pursuant to the terms of this Agreement (including cash and Cash Equivalents held by Parent Holdings representing proceeds from the Wellbeing Project Financing), so long as (in the case of preceding subclause (II)) Holdings utilizes such cash or Cash Equivalents within the time periods required, and its Subsidiaries shall not exceed $1,500,000 for any period of three consecutive Business Daysthe purposes permitted, by this Agreement;
(bii) the Borrower and its Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (including the dating of receivables) of the Borrower or such Subsidiary;
(ciii) the Borrower and its Subsidiaries may acquire and own investments (including debt obligations) received in connection with the bankruptcy or reorganization of suppliers suppliers, trade creditors, licensees, licensors and customers and in good faith settlement of delinquent obligations of, and other disputes with, Customers suppliers, trade creditors, licensees, licensors and suppliers customers arising in the ordinary course of business;
(div) interest Interest Rate Protection Agreements entered into in compliance with Section 9.04(c10.04(iii) shall be permitted;
(e) advances, loans and investments in existence on the Initial Borrowing Date and listed on Annex VI shall be permitted, without giving effect to any additions thereto or replacements thereof;
(i) the Borrower may make intercompany loans and advances to any Subsidiary Guarantor, (ii) any Subsidiary Guarantor may make intercompany loans and advances to the Borrower or any other Subsidiary Guarantor and (iii) the Borrower may make intercompany loans to the Parent for the purpose of making payments permitted pursuant to Section 9.06(ii) (loans pursuant to clauses (i) (ii) and (iii) of this clause (f) collectively, "Intercompany Loans"), PROVIDED, that (x) each Intercompany Loan shall be evidenced by an Intercompany Note and (y) each such Intercompany Note shall be pledged to the Collateral Agent pursuant to the Pledge Agreement;
(g) loans and advances by the Borrower and its Subsidiaries to employees of Parent and its Subsidiaries for moving and travel expenses and other similar expenses, in each case incurred in the ordinary course of business, in an aggregate outstanding principal amount not to exceed $500,000 at any time (determined without regard to any write-downs or write-offs of such loans and advances), shall be permitted; PROVIDED that up to $300,000 at any time of such outstanding principal amount may constitute loans to employees for purposes of exercising rights to purchase common stock of Parent and/or to make payments with respect to any tax liabilities.
(h) Parent may acquire and hold obligations of one or more officers or other employees of Parent or its Subsidiaries in connection with such officers' or employees' acquisition of shares of Parent Common Stock, so long as no cash is actually advanced by Parent or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(i) (x) Parent, Holdings, and Tri-Star Holdings may make equity contributions, directly in the case of Tri-Star Holdings, or by way of downstream contributions in the case of Parent and or Holdings to the capital of the Borrower and (y) Tri-Star Holdings may make Tri-Star Holdings Asset Contributions;
(j) the Borrower may make Permitted Acquisitions in accordance with the relevant requirements of Section 8.14 and the component definitions as used therein;
(k) Parent and its Subsidiaries may own the capital stock of their respective Subsidiaries created or acquired in accordance with the terms of this Agreement;
(l) the Borrower may make intercompany loans (collectively, the "Intercompany Acquisition Loans") to enable Tri-Star Holdings to pay the merger consideration owing pursuant to the Merger Agreement, so long as (x) Tri-Star Holdings utilizes all of the proceeds of such loans to consummate the merger pursuant to the Merger Agreement and (y) such loans are extinguished, to the extent of the value of the assets contributed, immediately following any Tri-Star Holdings Asset Contribution;
(m) the Borrower may make investments in Wholly Owned Foreign Subsidiaries which are not Subsidiary Guarantors not to exceed $10,000,000 in the aggregate, net of any repayments to the Borrower; and
(n) in addition to investments permitted by clauses (a) through (m) of this Section 9.05, the Borrower and its Subsidiaries may make additional loans, advances and investments to or in a Person not an Affiliate in an aggregate amount for all loans, advances and investments made pursuant to this clause (n) (determined without regard to any write-downs or write-offs thereof), net of cash repayments of principal in the case of loans and cash equity returns (whether as a dividend or redemption) in the case of equity investments, not to exceed $100,000.
Appears in 1 contract
Samples: Credit Agreement (Dole Food Co Inc)
Advances; Investments; Loans. Parent No Credit Agreement Party will, nor will not, and will not any Credit Agreement Party permit any of its Subsidiaries to, lend money or extend credit or make advances to any Person, or purchase or acquire any stock, obligations or securities of, or any other interest in, or make any capital contribution to, any other Person, or purchase or own a futures contract or otherwise become liable for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract, or hold any cash or Cash EquivalentsEquivalents (any of the foregoing, an “Investment”), except:
(a) Parent Holdings and its Subsidiaries may hold or invest in cash and Cash Equivalents, PROVIDED provided that during any time that Revolving Loans or Swingline Loans are outstanding outstanding, the aggregate amount of cash and Cash Equivalents held by Parent Holdings and its Subsidiaries shall not exceed $1,500,000 5,000,000 for any period of three five consecutive Business Days;
(b) the Borrower and its Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (including the dating of receivables) of the Borrower or such Subsidiary;
(c) the Borrower and its Subsidiaries may acquire and own investments (including debt obligationsobligations and equity securities) received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, Customers customers and suppliers arising in the ordinary course of business;
(d) interest Interest Rate Protection Agreements and Other Hedging Agreements entered into in compliance with Section 9.04(c) shall be permitted;
(e) advances, loans and investments in existence on the Initial Borrowing Date and listed on Annex Schedule VI shall be permitted, without giving effect to any additions thereto or replacements thereof, it being understood that any additional Investments made with respect to such existing Investments shall be permitted only if independently justified under the other provisions of this Section 9.05;
(if) the Borrower (I) any Credit Party (other than Holdings) may make intercompany loans and advances to any Subsidiary Guarantorother Credit Party (other than Holdings), (iiII) any Subsidiary Guarantor Credit Party (other than Holdings) may make intercompany loans and advances to the Borrower or any other Wholly-Owned Foreign Subsidiary Guarantor of Holdings and (iiiIII) the Borrower any Foreign Subsidiary of Holdings may make intercompany loans and advances to any Credit Party (other than Holdings) (such intercompany loans and advances referred to in preceding clauses (I) through (III), collectively, the Parent for “Intercompany Loans”), provided, that (w) at no time shall the purpose aggregate outstanding principal amount of making payments permitted all Intercompany Loans made pursuant to Section 9.06(ii) (loans pursuant to clauses (i) (ii) and (iii) of this clause (f) collectivelyby the Credit Parties to Foreign Subsidiaries, "Intercompany Loans"when added to the amount of contributions, capitalizations and forgivenesses theretofore made pursuant to Section 9.05(o), PROVIDED, that (x) each Intercompany Loan shall be evidenced by an Intercompany Note and (y) each such Intercompany Note shall be pledged to the Collateral Agent pursuant to the Pledge Agreement;
(g) loans and advances by the Borrower and its Subsidiaries to employees of Parent and its Subsidiaries for moving and travel expenses and other similar expenses, in each case incurred in the ordinary course of business, in an aggregate outstanding principal amount not to exceed $500,000 at any time 7,500,000 (determined without regard to any write-downs or write-offs of such loans and advances), (x) each Intercompany Loan shall be evidenced by an Intercompany Note, (y) each such Intercompany Note shall be pledged to the Collateral Agent pursuant to the U.S. Pledge Agreement and (z) each Intercompany Loan made by any Foreign Subsidiary of Holdings to a Credit Party shall be subject to subordination as, and to the extent required by, the Intercompany Subordination Agreement;
(g) loans and advances by Holdings and its Subsidiaries to employees of Holdings and its Subsidiaries in connection with relocations, purchases by such employees of Holdings Common Stock or options or similar rights to purchase Holdings Common Stock and other ordinary course of business purposes (including travel and entertainment expenses) shall be permitted; PROVIDED that up to $300,000 , so long as the aggregate principal amount thereof at any time outstanding (determined without regard to any write-downs or write-offs of such outstanding principal amount may constitute loans to employees for purposes of exercising rights to purchase common stock of Parent and/or to make payments with respect to any tax liabilities.and advances) shall not exceed $5,000,000;
(h) Parent Holdings may acquire and hold obligations of one or more officers or other employees of Parent Holdings or its Subsidiaries in connection with such officers' ’ or employees' ’ acquisition of shares of Parent Holdings Common Stock, so long as no cash is actually advanced by Parent Holdings or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(i) (x) Parent, Holdings, and Tri-Star Holdings may make equity contributions, directly in the case of Tri-Star Holdings, or by way of downstream contributions in the case of Parent and or Holdings to the capital of the Borrower and (y) Triany of its Wholly-Star Holdings may make Tri-Star Holdings Asset Contributions;
(j) the Borrower Owned Domestic Subsidiaries may make Permitted Acquisitions in accordance with the relevant requirements of Section 8.14 8.15 and the component definitions as used therein;
(kj) Parent Holdings and its Subsidiaries may own the capital stock of their respective Subsidiaries created or acquired in accordance with the terms of this AgreementAgreement (so long as all amounts invested in such Subsidiaries are independently justified under another provision of this Section 9.05);
(k) so long as no Default or Event of Default exists or would exist immediately after giving effect to the respective Investment, the Borrower and its Wholly-Owned Domestic Subsidiaries shall be permitted to make Investments in (x) any Joint Venture on any date in an amount not to exceed the Available Basket Amount on such date and (y) any Unrestricted Subsidiary on any date in an amount not to exceed the Available Basket Sub-Limit on such date (after giving effect to all prior and contemporaneous adjustments thereto, except as a result of such Investment), it being understood and agreed that (i) any such Investment may be in the form of a contribution of a Tractor Trailer or Tractor Trailers to such Joint Venture or Unrestricted Subsidiary and (ii) to the extent the Borrower or one or more other Credit Parties (after the respective Investment has been made) receives a cash return from the respective Joint Venture or Unrestricted Subsidiary of amounts previously invested pursuant to this clause (k) (which cash return may be made by way of repayment of principal in the case of loans and cash equity returns (whether as a distribution, dividend or redemption) in the case of equity investments) or a return in the form of an asset distribution from the respective Joint Venture or Unrestricted Subsidiary of any asset previously contributed pursuant to this clause (k), then the amount of such cash return of investment or the fair market value of such distributed asset (as determined in good faith by senior management of the Borrower), as the case may be, shall, upon the Administrative Agent’s receipt of a certification of the amount of the return of investment from an Authorized Officer, apply to increase the Available Basket Amount and/or the Available Basket Sub-Limit, as applicable, provided that the aggregate amount of increases to the Available Basket Amount and/or the Available Basket Sub-Limit described above shall not exceed the amount of returned investment and, in no event, shall the amount of the increases made to the Available Basket Amount and/or the Available Basket Sub-Limit in respect of any Investment exceed the amount previously invested pursuant to this clause (k);
(l) the Borrower and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any asset sale permitted by Sections 9.02(d), (k), (l) and (n);
(m) the Borrower and its Subsidiaries may convey, lease, license, sell or otherwise transfer or acquire assets and properties to the extent permitted by Sections 9.02(e), (f), (g), (j), (m), (p), (q) and (r);
(n) the Borrower and its Subsidiaries may make (i) advances in the form of a prepayment of expenses, so long as such expenses were incurred in the ordinary course of business and are being paid in accordance with customary trade terms of the Borrower or such Subsidiary and (ii) extend credit to Program Affiliates in connection with purchases on behalf of Program Affiliates to the extent permitted by Section 9.02(q);
(o) the Borrower and its Domestic Subsidiaries may make cash capital contributions to Wholly-Owned Foreign Subsidiaries, and may capitalize or forgive any Indebtedness owed to them by a Wholly-Owned Foreign Subsidiary and outstanding under clause (f) of this Section 9.05, provided that the aggregate amount of such contributions, capitalizations and forgiveness on and after the Initial Borrowing Date, when added to the aggregate outstanding principal amount of Intercompany Loans made to Wholly-Owned Foreign Subsidiaries under such clause (f) (determined without regard to any write-downs or write-offs thereof) shall not exceed an amount equal to $7,500,000;
(i) Holdings may make cash equity contribution to the Borrower, (ii) the Borrower and any Subsidiary Guarantor may make cash equity contributions to any Subsidiary Guarantor which is a direct Wholly-Owned Subsidiary of the Person making such contribution and (iii) any Subsidiary Guarantor may make non-cash equity contributions to any Subsidiary Guarantor which is a direct Wholly-Owned Subsidiary of the Subsidiary Guarantor making such contribution, so long as any security interest granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in any assets so contributed shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such contribution) and all actions required to maintain said perfected status have been taken;
(i) the Borrower may make intercompany loans (collectively, to Holdings on the "Intercompany Acquisition Loans") to enable Tri-Star Holdings to pay the merger consideration owing pursuant to the Merger AgreementRedemption Date, so long as (x) Tri-Star Holdings utilizes all shall have utilized the full amount of the proceeds of such loans intercompany loan on such date to consummate pay accrued interest, principal and related premiums of or on the merger Existing 2006 10% Senior Subordinated Notes and the Existing Junior PIK Notes pursuant to the Merger Agreement Existing Senior Notes Refinancing and (y) any such loans are extinguished, intercompany loan is evidenced by an Intercompany Note pledged to the extent of Collateral Agent pursuant to the value of U.S. Pledge Agreement (it being understood that this subclause (i) shall be alternative to, but duplicative of, the assets contributed, immediately following any Tri-Star Borrower’s right to Dividend cash to Holdings Asset Contribution;
on the Redemption Date for such purposes pursuant to Section 9.06(xii)) and (mii) the Borrower may make investments intercompany loans to Holdings in Wholly Owned Foreign Subsidiaries which are not Subsidiary Guarantors not such amount as may be required to exceed $10,000,000 enable Holdings to effect Dividends permitted pursuant to Sections 9.06(xiii), (xiv) and (xv), so long as (x) Holdings shall have utilized the full amount of the proceeds of such intercompany loan to effect such Dividends in accordance with the aggregaterequirements of Section 9.06(xiii), net of (xiv) or (xv), as the case may be, and (y) any repayments such intercompany loan shall be evidenced by an Intercompany Note pledged to the Collateral Agent pursuant to the U.S. Pledge Agreement (it being understood that this subclause (ii) shall be alternative to, but not duplicative of, the Borrower’s right to Dividend cash to Holdings for such purposes as set forth in Section 9.06(xvi)); and
(nr) in addition to investments permitted by clauses (a) through (mq) of this Section 9.05, the Borrower and its Subsidiaries may make additional loans, advances and investments other Investments to or in a Person not an Affiliate in an aggregate amount for all loans, advances and investments other Investments made pursuant to this clause (nr) (determined without regard to any write-downs or write-offs thereof), net of cash repayments of principal in the case of loans loans, sale proceeds in the case of Investments in the form of debt instruments and cash equity returns (whether as a dividend distribution, dividend, redemption or redemptionsale) in the case of equity investments, not to exceed $100,00025,000,000 at any time outstanding.
Appears in 1 contract
Advances; Investments; Loans. Parent No Credit Agreement Party will, nor will not, and will not permit any of its Subsidiaries to, directly or indirectly, lend money or extend credit or make advances to any Person, or purchase or acquire any stock, obligations or securities of, or any other interest Equity Interest in, or make any capital contribution to, any Person, or purchase or own a futures contract or otherwise become liable for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract, or hold any cash or Cash EquivalentsEquivalents (each of the foregoing an "Investment" and, collectively, "Investments"), except:
(ai) Parent (w) the U.S. Borrower and its Subsidiaries may acquire and hold or invest in cash and Cash Equivalents; (x) Intermediate Holdco may hold cash and Cash Equivalents (I) in a de minimis amount representing proceeds from the initial capital contribution made in connection with its formation and (II) representing the proceeds of any Indebtedness permitted to be incurred, PROVIDED that during or Dividends permitted to be received, by it pursuant to the terms of this Agreement, so long as (in the case of preceding subclause (II)) Intermediate Holdco utilizes such cash and/or Cash Equivalents within the time periods required, and for the purposes permitted, by this Agreement, (y) Corporate Holdco may hold cash and Cash Equivalents in a de minimis amount representing proceeds from the initial capital contribution made in connection with its formation and (z) Holdings may hold cash and Cash Equivalents (I) in a de minimis amount representing proceeds from the initial capital contribution made in connection with its formation and (II) representing the proceeds of any time that Revolving Loans Indebtedness permitted to be incurred, or Swingline Loans are outstanding Dividends permitted to be received, by it pursuant to the aggregate amount terms of this Agreement (including cash and Cash Equivalents held by Parent Holdings representing proceeds from the Wellbeing Project Financing), so long as (in the case of preceding subclause (II)) Holdings utilizes such cash or Cash Equivalents within the time periods required, and its Subsidiaries shall not exceed $1,500,000 for any period of three consecutive Business Daysthe purposes permitted, by this Agreement;
(bii) the U.S. Borrower and its Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (including the dating of receivables) of the U.S. Borrower or such Subsidiary;
(ciii) the U.S. Borrower and its Subsidiaries may acquire and own investments (including debt obligations) received in connection with the bankruptcy or reorganization of suppliers suppliers, trade creditors, licensees, licensors and customers and in good faith settlement of delinquent obligations of, and other disputes with, Customers suppliers, trade creditors, licensees, licensors and suppliers customers arising in the ordinary course of business;
(div) interest Interest Rate Protection Agreements entered into in compliance with Section 9.04(c9.04(b)(iii) shall be permitted;
(e) advances, loans and investments in existence on the Initial Borrowing Date and listed on Annex VI shall be permitted, without giving effect to any additions thereto or replacements thereof;
(i) the Borrower may make intercompany loans and advances to any Subsidiary Guarantor, (ii) any Subsidiary Guarantor may make intercompany loans and advances to the Borrower or any other Subsidiary Guarantor and (iii) the Borrower may make intercompany loans to the Parent for the purpose of making payments permitted pursuant to Section 9.06(ii) (loans pursuant to clauses (i) (ii) and (iii) of this clause (f) collectively, "Intercompany Loans"), PROVIDED, that (x) each Intercompany Loan shall be evidenced by an Intercompany Note and (y) each such Intercompany Note shall be pledged to the Collateral Agent pursuant to the Pledge Agreement;
(g) loans and advances by the Borrower and its Subsidiaries to employees of Parent and its Subsidiaries for moving and travel expenses and other similar expenses, in each case incurred in the ordinary course of business, in an aggregate outstanding principal amount not to exceed $500,000 at any time (determined without regard to any write-downs or write-offs of such loans and advances), shall be permitted; PROVIDED that up to $300,000 at any time of such outstanding principal amount may constitute loans to employees for purposes of exercising rights to purchase common stock of Parent and/or to make payments with respect to any tax liabilities.
(h) Parent may acquire and hold obligations of one or more officers or other employees of Parent or its Subsidiaries in connection with such officers' or employees' acquisition of shares of Parent Common Stock, so long as no cash is actually advanced by Parent or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(i) (x) Parent, Holdings, and Tri-Star Holdings may make equity contributions, directly in the case of Tri-Star Holdings, or by way of downstream contributions in the case of Parent and or Holdings to the capital of the Borrower and (y) Tri-Star Holdings may make Tri-Star Holdings Asset Contributions;
(j) the Borrower may make Permitted Acquisitions in accordance with the relevant requirements of Section 8.14 and the component definitions as used therein;
(k) Parent and its Subsidiaries may own the capital stock of their respective Subsidiaries created or acquired in accordance with the terms of this Agreement;
(l) the Borrower may make intercompany loans (collectively, the "Intercompany Acquisition Loans") to enable Tri-Star Holdings to pay the merger consideration owing pursuant to the Merger Agreement, so long as (x) Tri-Star Holdings utilizes all of the proceeds of such loans to consummate the merger pursuant to the Merger Agreement and (y) such loans are extinguished, to the extent of the value of the assets contributed, immediately following any Tri-Star Holdings Asset Contribution;
(m) the Borrower may make investments in Wholly Owned Foreign Subsidiaries which are not Subsidiary Guarantors not to exceed $10,000,000 in the aggregate, net of any repayments to the Borrower; and
(n) in addition to investments permitted by clauses (a) through (m) of this Section 9.05, the Borrower and its Subsidiaries may make additional loans, advances and investments to or in a Person not an Affiliate in an aggregate amount for all loans, advances and investments made pursuant to this clause (n) (determined without regard to any write-downs or write-offs thereof), net of cash repayments of principal in the case of loans and cash equity returns (whether as a dividend or redemption) in the case of equity investments, not to exceed $100,000.
Appears in 1 contract
Advances; Investments; Loans. Parent The Borrower will not, and will ---------------------------- not permit any of its Subsidiaries to, lend money or extend credit or make advances to any Person, or purchase or acquire any stock, obligations or securities of, or any other interest in, or make any capital contribution to, any Person, or purchase or own a futures contract or otherwise become liable for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract, or hold any cash or Cash EquivalentsEquivalents (any of the foregoing, an "Investment"), except:
(a) Parent the Borrower and its Subsidiaries may hold or invest in cash and Cash Equivalents, PROVIDED provided that during any time that Revolving Loans or -------- Swingline Loans are outstanding the aggregate amount of cash and Cash Equivalents held by Parent the Borrower and its Subsidiaries shall not exceed $1,500,000 5,000,000 for any period of three consecutive Business Days;
(b) the Borrower and its Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (including the dating of receivables) of the Borrower or such Subsidiary;
(c) the Borrower and its Subsidiaries may acquire and own investments (including debt obligationsobligations and equity securities) received in connection with the -77- bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, Customers customers and suppliers arising in the ordinary course of business;
(d) interest Interest Rate Protection Agreements entered into in compliance with Section 9.04(c) shall be permitted;
(e) advances, loans and investments in existence on the Initial Borrowing Date and listed on Annex Schedule VI shall be permitted, without giving effect to any additions thereto or replacements thereof;
(if) the Borrower may make intercompany loans and advances to any Subsidiary Guarantor, (ii) and any Subsidiary Guarantor may make intercompany loans and advances to the Borrower or any other Subsidiary Guarantor and (iii) the Borrower may make intercompany loans to the Parent for the purpose of making payments permitted pursuant to Section 9.06(ii) (loans pursuant to clauses (i) (ii) and (iii) of this clause (f) collectively, "Intercompany Loans"), PROVIDEDprovided, that (x) each Intercompany -------- Loan shall be evidenced by an Intercompany Note and (y) each such Intercompany Note shall be pledged to the Collateral Agent pursuant to the Pledge Agreement;
(g) loans and advances by the Borrower and its Subsidiaries to employees of Parent the Borrower and its Subsidiaries for moving and travel expenses in connection with relocations, purchases by such employees of Borrower Common Stock or options or similar rights to purchase Borrower Common Stock and other similar expenses, in each case incurred in the ordinary course of businessbusiness purposes shall be permitted, in an so long as the aggregate outstanding principal amount not to exceed $500,000 thereof at any time outstanding (determined without regard to any write-downs or write-offs of such loans and advances), ) shall be permitted; PROVIDED that up to not exceed $300,000 at any time of such outstanding principal amount may constitute loans to employees for purposes of exercising rights to purchase common stock of Parent and/or to make payments with respect to any tax liabilities.2,500,000;
(h) Parent the Borrower may acquire and hold obligations of one or more officers or other employees of Parent the Borrower or its Subsidiaries in connection with such officers' or employees' acquisition of shares of Parent Borrower Common Stock, so long as no cash is actually advanced by Parent the Borrower or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(i) (x) Parent, Holdings, and Tri-Star Holdings may make equity contributions, directly in the case of Tri-Star Holdings, or by way of downstream contributions in the case of Parent and or Holdings to the capital of the Borrower and (y) Tri-Star Holdings may make Tri-Star Holdings Asset ContributionsRecapitalization shall be permitted;
(j) the Borrower may make Permitted Acquisitions in accordance with the relevant requirements of Section 8.14 and the component definitions as used therein;
(k) Parent the Borrower and its Subsidiaries may own the capital stock of their respective Subsidiaries created or acquired in accordance with the terms of this Agreement;
(l) the Borrower may make intercompany loans (collectively, the "Intercompany Acquisition Loans") to enable Tri-Star Holdings to pay the merger consideration owing pursuant to the Merger Agreement, so long as no Default or Event of Default exists or would exist immedi ately after giving effect to the respective Investment, the Borrower shall be permitted to make Investments in any Joint Venture on any date in an amount not to exceed the Available JV Basket Amount on such date (x) Tri-Star Holdings utilizes after giving effect to all of the proceeds prior and contemporaneous adjustments thereto, except as a result of such loans Investment), it being understood and agreed that (i) any such Investment may be in the form of a contribution of a Healthcare Unit or Units to consummate the merger pursuant to the Merger Agreement such Joint Venture and (yii) such loans are extinguished, to the extent the Borrower or one or more other Credit Parties (after the respective Investment has been made) receives a cash return from the respective Joint Venture of amounts previously invested pursuant to this clause (l) (which cash return may be made by way of repayment of principal in the case of loans and cash equity returns (whether as a distribution, dividend or redemption) in the case of equity investments), then the amount of such return of investment shall, upon the Agent's receipt of a certification of the value amount of the assets contributedreturn of investment from an Authorized Officer, immediately following any Tri-Star Holdings Asset Contribution;
(m) apply to increase the Borrower may make investments Available JV Basket Amount, provided that the aggregate amount of increases to the -------- Available JV Basket Amount described above shall not exceed the amount of returned investment and, in Wholly Owned Foreign Subsidiaries which are not Subsidiary Guarantors not no event, shall the amount of the increases made to exceed $10,000,000 the Available JV Basket Amount in the aggregate, net respect of any repayments Investment exceed the amount previously invested pursuant to the Borrowerthis clause (l); and
(nm) in addition to investments permitted by clauses (a) through (ml) of this Section 9.05, the Borrower and its Subsidiaries may make additional loans, advances advan ces and investments to or in a Person not an Affiliate in an aggregate amount for all loans, advances and investments made pursuant to this clause (nm) (determined without regard to any write-downs or write-offs thereof), net of cash repayments of principal in the case of loans and cash equity returns (whether as a dividend distribution, dividend, redemption or redemptionsale) in the case of equity investments, not to exceed $100,00010,000,000.
Appears in 1 contract
Samples: Credit Agreement (Alliance Imaging of Michigan Inc)
Advances; Investments; Loans. Parent The Borrower will not, and will not permit any of its Subsidiaries to, lend money or extend credit or make advances to any Person, or purchase or acquire any stock, obligations or securities of, or any other interest in, or make any capital contribution to, any Person, or purchase or own a futures contract or otherwise become liable for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract, or hold any cash or Cash EquivalentsEquivalents (any of the foregoing, an "Investment"), except:
(a) Parent the Borrower and its Subsidiaries may hold or invest in cash and Cash Equivalents, PROVIDED that during any time that Revolving Loans or Swingline Loans are outstanding the aggregate amount of cash and Cash Equivalents held by Parent the Borrower and its Subsidiaries shall not exceed $1,500,000 8,000,000 for any period of three consecutive Business Days;
(b) the Borrower and its Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (including the dating of receivables) of the Borrower or such Subsidiary;
(c) the Borrower and its Subsidiaries may acquire and own investments (including debt obligationsobligations and equity securities) received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, Customers customers and suppliers arising in the ordinary course of business;
(d) interest Interest Rate Protection Agreements entered into in compliance with Section 9.04(c) shall be permitted;
(e) advances, loans and investments in existence on the Initial Borrowing Original Effective Date and listed on Annex Schedule VI shall be permitted, without giving effect to any additions thereto or replacements thereof;
(if) the Borrower may make intercompany loans and advances to any Subsidiary Guarantor, (ii) and any Subsidiary Guarantor may make intercompany loans and advances to the Borrower or any other Subsidiary Guarantor and (iii) the Borrower may make intercompany loans to the Parent for the purpose of making payments permitted pursuant to Section 9.06(ii) (loans pursuant to clauses (i) (ii) and (iii) of this clause (f) collectively, "Intercompany Loans"), PROVIDED, PROVIDED that (x) each Intercompany Loan shall be evidenced by an Intercompany Note and (y) each such Intercompany Note shall be pledged to the Collateral Agent pursuant to the Pledge Agreement;
(g) loans and advances by the Borrower and its Subsidiaries to employees of Parent the Borrower and its Subsidiaries for moving and travel expenses in connection with relocations, purchases by such employees of Borrower Common Stock or options or similar rights to purchase Borrower Common Stock and other similar expenses, in each case incurred in the ordinary course of businessbusiness purposes shall be permitted, in an so long as the aggregate outstanding principal amount not to exceed $500,000 thereof at any time outstanding (determined without regard to any write-downs or write-offs of such loans and advances), ) shall be permitted; PROVIDED that up to not exceed $300,000 at any time of such outstanding principal amount may constitute loans to employees for purposes of exercising rights to purchase common stock of Parent and/or to make payments with respect to any tax liabilities.2,500,000;
(h) Parent the Borrower may acquire and hold obligations of one or more officers or other employees of Parent the Borrower or its Subsidiaries in connection with such officers' or employees' acquisition of shares of Parent Borrower Common Stock, so long as no cash is actually advanced by Parent the Borrower or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(i) (x) Parent, Holdings, and Tri-Star Holdings may make equity contributions, directly in the case of Tri-Star Holdings, or by way of downstream contributions in the case of Parent and or Holdings to the capital of the Borrower and (y) Tri-Star Holdings may make Tri-Star Holdings Asset ContributionsASHS Acquisition shall be permitted;
(j) the Borrower and any of its Wholly-Owned Domestic Subsidiaries may make Permitted Acquisitions in accordance with the relevant requirements of Section 8.14 and the component definitions as used therein;
(k) Parent the Borrower and its Subsidiaries may own the capital stock of their respective Subsidiaries created or acquired in accordance with the terms of this Agreement;
(l) the Borrower may make intercompany loans (collectively, the "Intercompany Acquisition Loans") to enable Tri-Star Holdings to pay the merger consideration owing pursuant to the Merger Agreement, so long as no Default or Event of Default exists or would exist immediately after giving effect to the respective Investment, the Borrower shall be permitted to make Investments in any Joint Venture on any date in an amount not to exceed the Available JV Basket Amount on such date (x) Tri-Star Holdings utilizes after giving effect to all of the proceeds prior and contemporaneous adjustments thereto, except as a result of such loans Investment), it being understood and agreed that (i) any such Investment may be in the form of a contribution of a Healthcare Unit or Units to consummate the merger pursuant to the Merger Agreement such Joint Venture and (yii) such loans are extinguished, to the extent the Borrower or one or more other Credit Parties (after the respective Investment has been made) receives a cash return from the respective Joint Venture of amounts previously invested pursuant to this clause (l) (or clause (l) of Section 9.05 of either the Original Credit Agreement or the First Amended and Restated Credit Agreement) (which cash return may be made by way of repayment of principal in the case of loans and cash equity returns (whether as a distribution, dividend or redemption) in the case of equity investments), then the amount of such return of investment shall, upon the Administrative Agent's receipt of a certification of the value amount of the assets contributedreturn of investment from an Authorized Officer, immediately following any Tri-Star Holdings Asset Contribution;
(m) apply to increase the Borrower may make investments Available JV Basket Amount, PROVIDED that the aggregate amount of increases to the Available JV Basket Amount described above shall not exceed the amount of returned investment and, in Wholly Owned Foreign Subsidiaries which are not Subsidiary Guarantors not no event, shall the amount of the increases made to exceed $10,000,000 the Available JV Basket Amount in the aggregate, net respect of any repayments Investment exceed the amount previously invested pursuant to this clause (l) (or clause (l) of Section 9.05 of either the BorrowerOriginal Credit Agreement or the First Amended and Restated Credit Agreement); and
(nm) in addition to investments permitted by clauses (a) through (ml) of this Section 9.05, the Borrower and its Subsidiaries may make additional loans, advances and investments Investments to or in a Person not an Affiliate in an aggregate amount for all loans, advances and investments Investments made pursuant to this clause (nm) (determined without regard to any write-downs or write-offs thereof), net of cash repayments of principal in the case of loans loans, sale proceeds in the case of Investments in the form of debt instruments and cash equity returns (whether as a dividend distribution, dividend, redemption or redemptionsale) in the case of equity investments, not to exceed $100,00010,000,000.
Appears in 1 contract
Advances; Investments; Loans. Parent The Borrower will not, and will ---------------------------- not permit any of its Subsidiaries to, lend money or extend credit or make advances to any Person, or purchase or acquire any stock, obligations or securities of, or any other interest in, or make any capital contribution to, any Person, or purchase or own a futures contract or otherwise become liable for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract, or hold any cash or Cash EquivalentsEquivalents (any of the foregoing, an "Investment"), except:
(a) Parent the Borrower and its Subsidiaries may hold or invest in cash and Cash Equivalents, PROVIDED provided that during any time that (i) Revolving Loans or -------- Swingline Loans are outstanding and (ii) the Total Revolving Loan Commitment exceeds $40,000,000, the aggregate amount of cash and Cash Equivalents held by Parent the Borrower and its Subsidiaries shall not exceed $1,500,000 10,000,000 for any period of three consecutive Business Days;
(b) the Borrower and its Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (including the dating of receivables) of the Borrower or such Subsidiary;
(c) the Borrower and its Subsidiaries may acquire and own investments (including debt obligationsobligations and equity securities) received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, Customers customers and suppliers arising in the ordinary course of business;
(d) interest Interest Rate Protection Agreements and Other Hedging Agreements entered into in compliance with Section 9.04(c) shall be permitted;
(e) advances, loans and investments in existence on the Initial Borrowing Date and listed on Annex Schedule VI shall be permitted, without giving effect to any additions thereto or replacements thereof, it being understood that any additional Investments made with respect to such existing Investments shall be permitted only if independently justified under the other provisions of this Section 9.05;
(if) the Borrower any Credit Party may make intercompany loans and advances to any other Credit Party and any Foreign Subsidiary Guarantor, (ii) any Subsidiary Guarantor may make intercompany loans and advances to the Borrower or any other Subsidiary Guarantor and (iii) the Borrower may make intercompany loans to the Parent for the purpose of making payments permitted pursuant to Section 9.06(ii) (loans pursuant to clauses (i) (ii) and (iii) of this clause (f) collectively, "Intercompany Loans"), PROVIDEDprovided, that (w) at no time shall the aggregate outstanding -------- principal amount of all Intercompany Loans made pursuant to this clause (f) by the Credit Parties to Foreign Subsidiaries, when added to the amount of contributions, capitalizations and forgivenesses theretofore made pursuant to Section 9.05(p), exceed $10,000,000 (determined without regard to any write-downs or write-offs of such loans and advances), (x) each Intercompany Loan shall be evidenced by an Intercompany Note and (y) each such Intercompany Note shall be pledged to the Collateral Agent pursuant to the Pledge Agreement;
(g) loans and advances by the Borrower and its Subsidiaries to employees of Parent the Borrower and its Subsidiaries for moving and travel expenses in connection with relocations, purchases by such employees of Borrower Common Stock or options or similar rights to purchase Borrower Common Stock and other similar expenses, in each case incurred in the ordinary course of businessbusiness purposes (including travel and entertainment expenses) shall be permitted, in an so long as the aggregate outstanding principal amount not to exceed $500,000 thereof at any time outstanding (determined without regard to any write-write- downs or write-offs of such loans and advances), ) shall be permitted; PROVIDED that up to not exceed $300,000 at any time of such outstanding principal amount may constitute loans to employees for purposes of exercising rights to purchase common stock of Parent and/or to make payments with respect to any tax liabilities.5,000,000;
(h) Parent the Borrower may acquire and hold obligations of one or more officers or other employees of Parent the Borrower or its Subsidiaries in connection with such officers' or employees' acquisition of shares of Parent Borrower Common Stock, so long as no cash is actually advanced by Parent the Borrower or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(i) (x) Parent, Holdings, the Recapitalization and Tri-Star Holdings may make equity contributions, directly the Pacer Logistics Acquisition shall be permitted to be consummated in accordance with the case requirements of Tri-Star Holdings, or by way of downstream contributions in the case of Parent and or Holdings to the capital of the Borrower and (y) Tri-Star Holdings may make Tri-Star Holdings Asset ContributionsSection 5.08;
(j) the Borrower and any of its Wholly-Owned Domestic Subsidiaries may make Permitted Acquisitions in accordance with the relevant requirements of Section 8.14 and the component definitions as used therein;
(k) Parent the Borrower and its Subsidiaries may own the capital stock of their respective Subsidiaries created or acquired in accordance with the terms of this AgreementAgreement (so long as all amounts invested in such Subsidiaries are independently justified under another provision of this Section 9.05);
(l) the Borrower may make intercompany loans (collectively, the "Intercompany Acquisition Loans") to enable Tri-Star Holdings to pay the merger consideration owing pursuant to the Merger Agreement, so long as no Default or Event of Default exists or would exist immediately after giving effect to the respective Investment, the Borrower and its Wholly-Owned Domestic Subsidiaries shall be permitted to make Investments in any Joint Venture or any Unrestricted Subsidiary on any date in an amount not to exceed the Available Basket Amount on such date (x) Tri-Star Holdings utilizes after giving effect to all of the proceeds prior and contemporaneous adjustments thereto, except as a result of such loans to consummate the merger pursuant to the Merger Agreement Investment), it being understood and agreed that (yi) such loans are extinguished, to the extent the Borrower or one or more other Credit Parties (after the respective Investment has been made) receives a cash return from the respective Joint Venture or Unrestricted Subsidiary of amounts previously invested pursuant to this clause (l) (which cash return may be made by way of repayment of principal in the case of loans and cash equity returns (whether as a distribution, dividend or redemption) in the case of equity investments) or a return in the form of an asset distribution from the respective Joint Venture or Unrestricted Subsidiary of any asset previously contributed pursuant to this clause (l), then the amount of such cash return of investment or the fair market value of such distributed asset (as determined in good faith by senior management of the value Borrower), as the case may be, shall, upon the Administrative Agent's receipt of a certification of the assets contributedamount of the return of investment from an Authorized Officer, immediately following apply to increase the Available Basket Amount, provided that the aggregate amount -------- of increases to the Available Basket Amount described above shall not exceed the amount of returned investment and, in no event, shall the amount of the increases made to the Available Basket Amount in respect of any Tri-Star Holdings Asset ContributionInvestment exceed the amount previously invested pursuant to this clause (l);
(m) the Borrower and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any asset sale permitted by Sections 9.02(d) and (l);
(n) the Borrower and its Subsidiaries may convey, lease, license, sell or otherwise transfer or acquire assets and properties to the extent permitted by Sections 9.02(e), (f), (g), (k) and (n);
(o) the Borrower and its Subsidiaries may make investments advances in Wholly Owned the form of a prepayment of expenses, so long as such expenses were incurred in the ordinary course of business and are being paid in accordance with customary trade terms of the Borrower or such Subsidiary;
(p) the Borrower and its Domestic Subsidiaries may make cash capital contributions to Foreign Subsidiaries, and may capitalize or forgive any Indebtedness owed to them by a Foreign Subsidiary and outstanding under clause (f) of this Section 9.05, provided that the aggregate amount of such -------- contributions, capitalizations and forgiveness on and after the Initial Borrowing Date, when added to the aggregate outstanding principal amount of Intercompany Loans made to Foreign Subsidiaries which are under such clause (f) (determined without regard to any write-downs or write-offs thereof) shall not exceed an amount equal to $10,000,000;
(q) the Borrower and any Subsidiary Guarantors not Guarantor may make cash equity contributions to exceed $10,000,000 in the aggregate, net of any repayments to the BorrowerSubsidiary Guarantor; and
(nr) in addition to investments permitted by clauses (a) through (mq) of this Section 9.05, the Borrower and its Subsidiaries may make additional loans, advances and investments other Investments to or in a Person not an Affiliate in an aggregate amount for all loans, advances and investments other Investments made pursuant to this clause (nr) (determined without regard to any write-downs or write-offs thereof), net of cash repayments of principal in the case of loans loans, sale proceeds in the case of Investments in the form of debt instruments and cash equity returns (whether as a dividend distribution, dividend, redemption or redemptionsale) in the case of equity investments, not to exceed $100,00015,000,000 at any time outstanding.
Appears in 1 contract
Samples: Credit Agreement (Pacer Express Inc)
Advances; Investments; Loans. Parent No Credit Agreement Party will, nor will not, and will not permit any of its Subsidiaries to, directly or indirectly, lend money or extend credit or make advances to any Person, or purchase or acquire any stock, obligations or securities of, or any other interest Equity Interest in, or make any capital contribution to, any Person, or purchase or own a futures contract or otherwise become liable for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract, or hold any cash or Cash EquivalentsEquivalents (each of the foregoing an "Investment" and, collectively, "Investments"), except:
(ai) Parent (w) the U.S. Borrower and its Subsidiaries may acquire and hold or invest in cash and Cash Equivalents; provided, PROVIDED however, that during at any time that Revolving Loans or and/or Swingline Loans are outstanding outstanding, the aggregate amount of cash and Unrestricted Cash Equivalents held by Parent the U.S. Borrower and its Subsidiaries shall not exceed $1,500,000 100,000,000 for any period of three consecutive Business Days, (x) Intermediate Holdco may hold cash and Cash Equivalents (I) in a de minimis amount representing proceeds from the initial capital contribution made in connection with its formation and (II) representing the proceeds of any Indebtedness permitted to be incurred, or Dividends permitted to be received, by it pursuant to the terms of this Agreement, so long as (in the case of preceding subclause (II)) Intermediate Holdco utilizes such cash and/or Cash Equivalents within the time periods required, and for the purposes permitted, by this Agreement, (y) Corporate Holdco may hold cash and Cash Equivalents in a de minimis amount representing proceeds from the initial capital contribution made in connection with its formation and (z) Holdings may hold cash and Cash Equivalents (I) in a de minimis amount representing proceeds from the initial capital contribution made in connection with its formation and (II) representing the proceeds of any Indebtedness permitted to be incurred, or Dividends permitted to be received, by it pursuant to the terms of this Agreement, so long as (in the case of preceding subclause (II)) Holdings utilizes such cash or Cash Equivalents within the time periods required, and for the purposes permitted, by this Agreement;
(bii) the U.S. Borrower and its Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (including the dating of receivables) of the U.S. Borrower or such Subsidiary;
(ciii) the U.S. Borrower and its Subsidiaries may acquire and own investments (including debt obligations) received in connection with the bankruptcy or reorganization of suppliers suppliers, trade creditors, licensees, licensors and customers and in good faith settlement of delinquent obligations of, and other disputes with, Customers suppliers, trade creditors, licensees, licensors and suppliers customers arising in the ordinary course of business;
(div) interest Interest Rate Protection Agreements entered into in compliance with Section 9.04(c9.04(iii) shall be permitted;
(e) advances, loans and investments in existence on the Initial Borrowing Date and listed on Annex VI shall be permitted, without giving effect to any additions thereto or replacements thereof;
(i) the Borrower may make intercompany loans and advances to any Subsidiary Guarantor, (ii) any Subsidiary Guarantor may make intercompany loans and advances to the Borrower or any other Subsidiary Guarantor and (iii) the Borrower may make intercompany loans to the Parent for the purpose of making payments permitted pursuant to Section 9.06(ii) (loans pursuant to clauses (i) (ii) and (iii) of this clause (f) collectively, "Intercompany Loans"), PROVIDED, that (x) each Intercompany Loan shall be evidenced by an Intercompany Note and (y) each such Intercompany Note shall be pledged to the Collateral Agent pursuant to the Pledge Agreement;
(g) loans and advances by the Borrower and its Subsidiaries to employees of Parent and its Subsidiaries for moving and travel expenses and other similar expenses, in each case incurred in the ordinary course of business, in an aggregate outstanding principal amount not to exceed $500,000 at any time (determined without regard to any write-downs or write-offs of such loans and advances), shall be permitted; PROVIDED that up to $300,000 at any time of such outstanding principal amount may constitute loans to employees for purposes of exercising rights to purchase common stock of Parent and/or to make payments with respect to any tax liabilities.
(h) Parent may acquire and hold obligations of one or more officers or other employees of Parent or its Subsidiaries in connection with such officers' or employees' acquisition of shares of Parent Common Stock, so long as no cash is actually advanced by Parent or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(i) (x) Parent, Holdings, and Tri-Star Holdings may make equity contributions, directly in the case of Tri-Star Holdings, or by way of downstream contributions in the case of Parent and or Holdings to the capital of the Borrower and (y) Tri-Star Holdings may make Tri-Star Holdings Asset Contributions;
(j) the Borrower may make Permitted Acquisitions in accordance with the relevant requirements of Section 8.14 and the component definitions as used therein;
(k) Parent and its Subsidiaries may own the capital stock of their respective Subsidiaries created or acquired in accordance with the terms of this Agreement;
(l) the Borrower may make intercompany loans (collectively, the "Intercompany Acquisition Loans") to enable Tri-Star Holdings to pay the merger consideration owing pursuant to the Merger Agreement, so long as (x) Tri-Star Holdings utilizes all of the proceeds of such loans to consummate the merger pursuant to the Merger Agreement and (y) such loans are extinguished, to the extent of the value of the assets contributed, immediately following any Tri-Star Holdings Asset Contribution;
(m) the Borrower may make investments in Wholly Owned Foreign Subsidiaries which are not Subsidiary Guarantors not to exceed $10,000,000 in the aggregate, net of any repayments to the Borrower; and
(n) in addition to investments permitted by clauses (a) through (m) of this Section 9.05, the Borrower and its Subsidiaries may make additional loans, advances and investments to or in a Person not an Affiliate in an aggregate amount for all loans, advances and investments made pursuant to this clause (n) (determined without regard to any write-downs or write-offs thereof), net of cash repayments of principal in the case of loans and cash equity returns (whether as a dividend or redemption) in the case of equity investments, not to exceed $100,000.
Appears in 1 contract
Advances; Investments; Loans. Parent The US Borrower will not, and will not permit any of its Subsidiaries to, lend money or extend credit or make advances to any Person, or purchase or acquire any stock, obligations or securities of, or any other interest in, or guarantee any Indebtedness or other obligations of, or make any capital contribution to, any Person, or purchase or own a futures contract or otherwise become liable for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract, or hold any cash or Cash EquivalentsEquivalents (any of the foregoing, an “Investment”), except:
(a) Parent the US Borrower and any of its Subsidiaries may hold or invest in cash and Cash Equivalents, PROVIDED that during any time that Revolving Loans or Swingline Loans are outstanding the aggregate amount of cash and Cash Equivalents held by Parent and its Subsidiaries shall not exceed $1,500,000 for any period of three consecutive Business Days;
(bi) the US Borrower and any of its Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (including the dating of receivables) of the US Borrower or such SubsidiarySubsidiary and (ii) Wholly Owned Foreign Subsidiaries may acquire and hold receivables owed by foreign account parties and obligors pursuant to Permitted Intercompany Receivables Sales, provided that the aggregate amount of all receivables acquired pursuant to this clause (ii) at any time outstanding does not exceed $100,000,000;
(c) the US Borrower and any of its Subsidiaries may acquire and own investments Investments (including debt obligationsobligations and equity securities) received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, Customers customers and suppliers arising in the ordinary course of business;
(d) interest Rate Protection Swap Agreements entered into in compliance with Section 9.04(c7.04(c) shall be permitted;
(e) advances, loans and investments in existence on the Initial Borrowing Original Effective Date and listed on Annex VI Schedule IX shall be permitted, without giving effect to any additions thereto or replacements thereof, it being understood that any additional Investments made with respect to such existing Investments shall be permitted only if independently permitted under the other provisions of this Section 7.05;
(if) the US Borrower and any of its Wholly-Owned Subsidiaries may make intercompany loans and advances to any Subsidiary Guarantorbetween and among one another (collectively, (ii) any Subsidiary Guarantor may make intercompany loans and advances to the Borrower or any other Subsidiary Guarantor and (iii) the Borrower may make intercompany loans to the Parent for the purpose of making payments permitted pursuant to Section 9.06(ii) (loans pursuant to clauses “Intercompany Loans”); provided that (i) (ii) and (iii) at no time shall the aggregate outstanding principal amount of all Intercompany Loans made pursuant to this clause (f) collectivelyby Credit Parties to Wholly-Owned Subsidiaries that are not Credit Parties, "Intercompany Loans"), PROVIDED, that (x) each Intercompany Loan shall be evidenced by an Intercompany Note and (y) each such Intercompany Note shall be pledged when added to the Collateral Agent aggregate amount of contributions, capitalizations and forgiveness theretofore made pursuant to the Pledge Agreement;
(gSection 7.05(n) loans and advances by the Borrower and its in respect of Wholly-Owned Foreign Subsidiaries to employees of Parent and its Subsidiaries for moving and travel expenses and other similar expensesthat are not Credit Parties, in each case incurred in the ordinary course of business, in an aggregate outstanding principal amount not to exceed $500,000 at any time 50,000,000 (determined without regard to any write-downs or write-offs of such loans and advances), (ii) (A) the Canadian Intercompany Loan, the UK Intercompany Loan and the Canadian LP Intercompany Loans shall be evidenced by the Canadian Intercompany Note, the UK Intercompany Note and the Canadian LP Intercompany Notes, respectively (which shall be pledged to the Collateral Agent (1) in the case of the UK Intercompany Note, pursuant to the US Collateral and Guaranty Agreement and (2) in the case of the Canadian Intercompany Note and the Canadian LP Intercompany Notes, pursuant to the applicable Foreign Pledge Agreement or Foreign Security Agreement), and (B) the obligations of the Canadian Borrower under the Canadian Intercompany Loan shall be Foreign Obligations guaranteed under the Foreign Guaranty, the obligations of the UK Borrower under the UK Intercompany Loan shall be Foreign Obligations guaranteed under the Foreign Guaranty and the obligations of Sideco under the Canadian LP Intercompany Loans shall be Foreign Obligations guaranteed under the Foreign Guaranty, (iii) if any such Intercompany Loan (other than the Canadian Intercompany Loan, UK Intercompany Loan and Canadian LP Intercompany Loans) made by a Credit Party is evidenced by a promissory note or other instrument, such promissory note or other instrument shall be an Intercompany Note and such Intercompany Note shall be pledged to the Collateral Agent to the extent required pursuant to the US Collateral and Guaranty Agreement or the applicable Foreign Pledge Agreement and (iv) each Intercompany Loan made either (A) to the US Borrower or (B) by a Wholly-Owned Foreign Subsidiary to a US Credit Party or by a Non-Credit Party to a Credit Party shall include (or, if not evidenced by an Intercompany Note, the books and records of the respective parties shall note that such Intercompany Loan is subject to) the subordination provisions attached as an Annex to the form of Intercompany Note;
(g) loans and advances by the US Borrower and any of its Subsidiaries to employees of the US Borrower and any of its Subsidiaries in the ordinary course of business and for bona fide business purposes (including travel and entertainment expenses) shall be permitted; PROVIDED that up to $300,000 , so long as the aggregate principal amount thereof at any time outstanding (determined without regard to any write-downs or write-offs of such outstanding principal amount may constitute loans to employees for purposes of exercising rights to purchase common stock of Parent and/or to make payments with respect to any tax liabilities.and advances) shall not exceed $5,000,000;
(h) Parent The US Borrower may acquire and hold obligations of one or more officers or other employees of Parent the US Borrower or any of its Subsidiaries in connection with such officers' ’ or employees' ’ acquisition of shares of Parent US Borrower Common Stock, so long as no cash is actually advanced by Parent the US Borrower or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(i) (x) Parent, Holdings, and Tri-Star Holdings may make equity contributions, directly in the case of Tri-Star Holdings, or by way of downstream contributions in the case of Parent and or Holdings to the capital of the US Borrower and (y) Triany of its Wholly-Star Holdings may make Tri-Star Holdings Asset Contributions;
(j) the Borrower Owned Subsidiaries may make Permitted Acquisitions in accordance with the relevant requirements of Section 8.14 6.13 and the component definitions as used thereinmay effect other acquisitions permitted by Section 7.02(t);
(kj) Parent The US Borrower and its Subsidiaries may own the capital stock of their respective Subsidiaries created or acquired in accordance with the terms of this AgreementAgreement (so long as all amounts invested in such Subsidiaries are independently permitted under another provision of this Section 7.05);
(k) the US Borrower and any of its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any asset sale permitted by Section 7.02(d), (l) or (q);
(l) the US Borrower and any of its Subsidiaries may make intercompany loans (collectivelyconvey, the "Intercompany Acquisition Loans") to enable Tri-Star Holdings to pay the merger consideration owing pursuant to the Merger Agreementlease, so long as (x) Tri-Star Holdings utilizes all of the proceeds of such loans to consummate the merger pursuant to the Merger Agreement license, sell or otherwise transfer or acquire assets and (y) such loans are extinguished, properties to the extent of the value of the assets contributedpermitted by Section 7.02(e), immediately following any Tri-Star Holdings Asset Contribution(f), (g), (h) or (k);
(m) the US Borrower and any of its Subsidiaries may make investments in Wholly Owned Foreign Subsidiaries which are not Subsidiary Guarantors not to exceed $10,000,000 advances in the aggregateform of a prepayment of expenses, net so long as such expenses were incurred in the ordinary course of any repayments to business and are being paid in accordance with customary trade terms of the Borrower; andUS Borrower or such Subsidiary;
(n) the US Borrower and its Wholly-Owned Subsidiaries may make cash capital contributions to their respective Wholly-Owned Subsidiaries, and may capitalize or forgive any Indebtedness owed to them by a Wholly-Owned Foreign Subsidiary and outstanding under clause (f) of this Section 7.05; provided that the aggregate amount of such contributions, capitalizations and forgiveness on and after the Original Effective Date made to Wholly-Owned Foreign Subsidiaries that are not Credit Parties, when added to the aggregate outstanding principal amount of Intercompany Loans made to Wholly-Owned Foreign Subsidiaries that are not Credit Parties under such clause (f) (determined without regard to any write-downs or write-offs thereof) shall not exceed an amount equal to $50,000,000;
(o) in addition to investments Investments permitted by clauses (a) through (mn) and (p) of this Section 9.057.05, the US Borrower and any of its Subsidiaries may make additional loans, advances and investments other Investments to or in a Person not an Affiliate in an aggregate amount for all loans, advances and investments other Investments made pursuant to this clause (no) (determined without regard to any write-downs or write-offs thereof), net of cash repayments of principal in the case of loans loans, sale proceeds in the case of Investments in the form of debt instruments and cash equity returns (whether as a dividend distribution, dividend, redemption or redemptionsale) in the case of equity investments, not to exceed $100,000100,000,000 at any time outstanding;
(p) the US Borrower and any of its Subsidiaries may guarantee any Indebtedness or other obligations of another Person to the extent expressly permitted under clauses (a), (e), (f), (g), (j), (n) or (o) of Section 7.04 or clause (d) of Section 7.04 to the extent such guaranty exists on the date of the applicable Permitted Acquisition; and
(q) the U.S. Borrower and any of its Subsidiaries may make Investments required in connection with a Permitted Securitization Financing permitted pursuant to Section 7.04(p).
Appears in 1 contract
Samples: Credit Agreement (Compass Minerals International Inc)
Advances; Investments; Loans. Parent The U.S. Borrower will not, and will not permit any of its Subsidiaries to, directly or indirectly, lend money or extend credit or make advances to any Person, or purchase or acquire any stock, obligations or securities of, or any other interest Equity Interest in, or make any capital contribution to, any Person, or purchase or own a futures contract or otherwise become liable for the purchase or sale of currency or other commodities at a future date in the nature of a futures contractcontract (each of the foregoing an “Investment” and, or hold any cash or Cash Equivalentscollectively, “Investments”), except:
(ai) Parent the U.S. Borrower and its Subsidiaries may acquire and hold or invest in cash and Cash Equivalents, PROVIDED that during any time that Revolving Loans or Swingline Loans are outstanding the aggregate amount of cash and Cash Equivalents held by Parent and its Subsidiaries shall not exceed $1,500,000 for any period of three consecutive Business Days;
(bii) the U.S. Borrower and its Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (including the dating of receivables) of the U.S. Borrower or such Subsidiary;
(ciii) the U.S. Borrower and its Subsidiaries may acquire and own investments (including debt obligations) received in connection with the bankruptcy or reorganization of suppliers suppliers, trade creditors, licensees, licensors and customers and in good faith settlement of delinquent obligations of, and other disputes with, Customers suppliers, trade creditors, licensees, licensors and suppliers customers arising in the ordinary course of business;
(div) interest Interest Rate Protection Agreements, Other Hedging Agreements and Commodity Agreements entered into in compliance with Section 9.04(c9.04(b)(iii) shall be permitted;
(ev) advances, loans and investments (x) Investments constituting Intercompany Existing Indebtedness in existence on the Initial Borrowing Amendment No. 3 Effective Date and any Permitted Refinancing Indebtedness in respect thereof and (y) other Investments in existence on the Amendment No. 3 Effective Date and listed on Annex Schedule VI shall be permitted(and amendments, without giving effect to any additions thereto or replacements thereofmodifications and renewals thereof that do not increase the amount of such Investments);
(ivi) Investments (u) by U.S. Credit Parties in Foreign Credit Parties provided that at no time shall the aggregate outstanding amount of all such Investments made pursuant to subclause (u) of this Section 9.05(vi) exceed $50,000,000, (v) in any U.S. Credit Party, (w) among Foreign Credit Parties; provided that in the case of any Investment resulting in a transfer of Collateral with a Fair Market Value in excess of $5,000,000, the U.S. Borrower shall notify the Administrative Agent thereof and take such action as may make intercompany loans and advances to be requested by the Administrative Agent for purposes of ensuring the continued enforceability of the Collateral Agent’s security interest therein, (x) by any Subsidiary Guarantor, (ii) any Subsidiary Guarantor may make intercompany loans and advances to of the U.S. Borrower that is not a Credit Party in the U.S. Borrower or any other Subsidiary Guarantor of its Subsidiaries, (y) so long as no Event of Default has occurred and is continuing, transfers of cash and Cash Equivalents among the U.S. Borrower and its Subsidiaries in the ordinary course of business for working capital purposes and (iiiz) other Investments by the U.S. Borrower may make intercompany loans to and its Subsidiaries in any Subsidiary of the Parent for U.S. Borrower, provided that at no time shall the purpose aggregate outstanding amount of making payments permitted all such Investments made pursuant to Section 9.06(ii) subclause (loans pursuant to clauses (i) (ii) and (iiiz) of this clause Section 9.05(vi) (fexclusive of Investments that would have otherwise been permitted under subclause (w) collectively, "Intercompany Loans"), PROVIDED, above except that such Investment involved a transitory Investment through a Subsidiary that was not a Credit Party which promptly made a corresponding Investment in a Foreign Credit Party) exceed $250,000,000;
(vii) (x) each Intercompany Loan shall be evidenced by an Intercompany Note and (y) each such Intercompany Note shall be pledged to the Collateral Agent pursuant to the Pledge Agreement;
(g) loans and advances by the U.S. Borrower and its Subsidiaries to officers, employees and directors of Parent the U.S. Borrower and its Subsidiaries for moving and travel expenses and other similar expensesbona fide business purposes, in each case incurred in the ordinary course of business, in an aggregate outstanding principal amount not to exceed ex- ceed $500,000 5,000,000 at any time outstanding (determined without regard to any write-downs or write-offs of such loans and advances), ) shall be permitted; PROVIDED that up , (y) advances of reimbursable expenses by the U.S. Borrower and its Subsidiaries to $300,000 at any time officers, employees and directors of such outstanding principal amount may constitute the U.S. Borrower and its Subsidiaries for bona fide purposes, in each case incurred in the ordinary course of business, and (z) non-cash loans to employees for purposes of exercising rights to purchase common stock of Parent and/or to make payments with respect to any tax liabilities.
(h) Parent may acquire and hold obligations of one or more officers officers, directors or other employees of Parent the U.S. Borrower or any of its Subsidiaries in connection with such officers' ’, directors’ or employees' ’ acquisition of shares of Parent Common Stock, so long as no cash is actually advanced by Parent or any capital stock of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligationsU.S. Borrower;
(iviii) (x) Parent, Holdings, the U.S. Borrower and Tri-Star Holdings its Subsidiaries may make equity contributions, directly in the case of Tri-Star Holdings, or by way of downstream contributions in the case of Parent and or Holdings to the capital of the Borrower and (y) Tri-Star Holdings may make Tri-Star Holdings Asset ContributionsPermitted Acquisitions;
(jix) the U.S. Borrower may make Permitted Acquisitions in accordance with the relevant requirements of Section 8.14 and the component definitions as used therein;
(k) Parent and its Subsidiaries may own the capital stock of of, or other Equity Interests in, their respective Subsidiaries created or acquired in accordance with the terms of this Agreement;
(l) the Borrower may make intercompany loans (collectively, the "Intercompany Acquisition Loans") to enable Tri-Star Holdings to pay the merger consideration owing pursuant to the Merger Agreement, so long as (x) Tri-Star Holdings utilizes all of the proceeds of such loans to consummate the merger pursuant to the Merger Agreement and (y) such loans are extinguished, to the extent of the value of the assets contributed, immediately following any Tri-Star Holdings Asset Contribution;
(m) the Borrower may make investments in Wholly Owned Foreign Subsidiaries which are not Subsidiary Guarantors not to exceed $10,000,000 in the aggregate, net of any repayments to the Borrower; and
(n) in addition to investments permitted by clauses (a) through (m) of this Section 9.05, the Borrower and its Subsidiaries may make additional loans, advances and investments to or in a Person not an Affiliate in an aggregate amount for all loans, advances and investments made pursuant to this clause (n) (determined without regard to any write-downs or write-offs thereof), net of cash repayments of principal in the case of loans and cash equity returns (whether as a dividend or redemption) in the case of equity investments, not to exceed $100,000.
Appears in 1 contract
Samples: Credit Agreement (Dole Food Co Inc)
Advances; Investments; Loans. Parent The Company will not, and will not permit any of its Restricted Subsidiaries to, lend money or extend credit or make advances to any Person, or purchase or acquire any stock, obligations or securities of, or any other interest in, or make any capital contribution to, any other Person, or purchase or own otherwise acquire (in one or a futures contract series of related transactions) all or otherwise become liable for substantially all of the purchase property or sale assets or business of currency another Person (other than purchases or other commodities at a future date acquisitions of inventory, materials and equipment in the nature ordinary course of business) or assets constituting a futures contractbusiness unit, line of business or hold division of any cash or Cash EquivalentsPerson (each of the foregoing an “Investment” and, exceptcollectively, “Investments”), except that:
(a) Parent and its Subsidiaries may hold or invest Investments in cash and Cash Equivalents, PROVIDED that during any time that Revolving Loans or Swingline Loans are outstanding the aggregate amount form of cash and Cash Equivalents held by Parent and its Subsidiaries shall not exceed $1,500,000 for any period of three consecutive Business Daysbe permitted;
(b) the Borrower Company and its Restricted Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (including the dating of receivables) of the Borrower Company or such Restricted Subsidiary;
(c) the Borrower Company and its Restricted Subsidiaries may acquire and own investments (including debt obligations) received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, Customers customers and suppliers arising in the ordinary course of business;
(d) interest Rate Protection Swap Agreements entered into in compliance with Section 9.04(c7.04(c) shall be permitted;
(e) advances, loans and investments (i) Investments in existence on the Initial Borrowing Closing Date and listed on Annex VI Schedule 7.05 and any intercompany Investments outstanding on the date hereof shall be permittedpermitted and (ii) any modification, without giving effect to any additions thereto replacement, renewal or replacements thereofextension of the foregoing; provided that the amount of the original Investment is not increased except by the terms of such Investment or as otherwise permitted by this Section 7.05;
(f) Investments made by the Company in or to any Restricted Subsidiary and made by any Restricted Subsidiary in or to the Company or any other Restricted Subsidiary and Guarantees by the Company or any Restricted Subsidiary of obligations of any other Restricted Subsidiary, provided that the amount of any Investment (i) the Borrower may make intercompany loans and advances by a Domestic Credit Party to any Subsidiary Guarantora Foreign Subsidiary, (ii) any Subsidiary Guarantor may make intercompany loans and advances by a Foreign Borrower to the Borrower or any other Subsidiary Guarantor and a Non-Credit Party, (iii) the Borrower may make intercompany loans to the Parent for the purpose constituting a Guarantee by a Domestic Credit Party of making payments permitted pursuant to Section 9.06(ii) (loans pursuant to clauses (i) (ii) obligations of any Foreign Subsidiary and (iiiiv) constituting a Guarantee by a Foreign Borrower of this clause (f) collectivelyobligations of any Non-Credit Party shall not exceed in the aggregate the greater of $250,000,000 and 10.50% of Consolidated Total Assets at any time outstanding; provided, "Intercompany Loans"), PROVIDED, further that (x) each Intercompany Loan any unsecured Guarantees by the Company of any Indebtedness of Foreign Subsidiaries permitted under Section 7.04 shall be evidenced by an Intercompany Note and (y) each such Intercompany Note shall be pledged to excluded from the Collateral Agent pursuant to calculation of the Pledge Agreementbasket in the foregoing proviso;
(g) loans and advances by the Borrower Company and its Restricted Subsidiaries to officers and employees of Parent the Company and its Subsidiaries for moving and travel expenses and other similar expensesRestricted Subsidiaries, in each case incurred in the ordinary course of business, in an aggregate outstanding principal amount not to exceed $500,000 10,000,000 at any time (determined without regard to any write-downs or write-offs of such loans and advances), ) shall be permitted; PROVIDED that up to $300,000 at any time of such outstanding principal amount may constitute loans to employees for purposes of exercising rights to purchase common stock of Parent and/or to make payments with respect to any tax liabilities.
(h) Parent may acquire and hold obligations of one or more officers or other employees of Parent or its Subsidiaries in connection with such officers' or employees' acquisition of shares of Parent Common Stock, so long as no cash is actually advanced by Parent or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(i) (x) Parent, Holdings, the Company and Tri-Star Holdings the Domestic Credit Parties may make equity contributions, directly in the case of Tricontributions to their respective direct wholly-Star Holdings, or by way of downstream contributions in the case of Parent and or Holdings to the capital of the Borrower owned Restricted Subsidiaries which are Domestic Credit Parties and (yii) Tri-Star Holdings the Foreign Borrowers may make Triequity contributions to their respective direct wholly-Star Holdings Asset Contributionsowned Restricted Subsidiaries which are Credit Parties;
(i) Permitted Acquisitions shall be permitted;
(j) the Borrower may make Permitted Acquisitions in accordance with the relevant requirements of Section 8.14 and the component definitions as used therein;
(k) Parent Company and its Restricted Subsidiaries may own the capital stock Equity Interests of their respective Restricted Subsidiaries in existence on the Closing Date or thereafter created or acquired in accordance with the terms of this Agreement;
(k) any Investments in any Subsidiary in connection with intercompany cash management arrangements or related activities arising in the ordinary course of business;
(l) the Borrower Company and its Restricted Subsidiaries may make intercompany loans (collectively, acquire and hold non-cash consideration issued by the "Intercompany Acquisition Loans") to enable Tri-Star Holdings to pay the merger consideration owing pursuant to the Merger Agreement, so long as (x) Tri-Star Holdings utilizes all purchaser of the proceeds assets in connection with a sale of such loans to consummate the merger pursuant to the Merger Agreement and (y) such loans are extinguished, assets to the extent of the value of the assets contributed, immediately following any Tri-Star Holdings Asset Contributionpermitted by Section 7.02(e);
(m) the Borrower Company and its Restricted Subsidiaries may make investments enter into Other Hedging Agreements in Wholly Owned Foreign Subsidiaries which the ordinary course of business providing protection against fluctuations in currency values in connection with the operations of the Company or any of its Restricted Subsidiaries, so long as management of the Company or such Restricted Subsidiary, as the case may be, has determined in good faith that the entering into of such Other Hedging Agreements are bona fide hedging activities and are not Subsidiary Guarantors not to exceed $10,000,000 in the aggregate, net of any repayments to the Borrower; andfor speculative purposes;
(n) in addition so long as no Event of Default exists or would exist immediately after giving effect to investments permitted by clauses (a) through (m) of this Section 9.05the respective Investment, the Borrower Company and its Restricted Subsidiaries may shall be permitted to make additional loans, advances Investments in any Joint Venture and investments to or in a Person not an Affiliate any Unrestricted Subsidiary on any date in an aggregate amount for not to exceed the Available JV Basket Amount on such date (after giving effect to all loansprior and contemporaneous adjustments thereto, advances except as a result of such Investment), it being understood and investments made agreed that to the extent the Company or one or more other Restricted Subsidiaries (after the respective Investment has been made) receives a cash return from the respective Joint Venture or Unrestricted Subsidiary, as applicable, of amounts previously invested pursuant to this clause (n) after the Closing Date (determined without regard to any write-downs or write-offs thereof), net which cash return may be made by way of cash repayments repayment of principal in the case of loans and cash equity returns (whether as a distribution, dividend or redemption) in the case of equity investments) or a return in the form of an asset distribution from the respective Joint Venture or Unrestricted Subsidiary, as applicable, of any asset previously contributed pursuant to this clause (n) after the Closing Date, then the amount of such cash return of investment or the fair market value of such distributed asset (as determined in good faith by senior management of the Company), as the case may be, shall apply to increase the Available JV Basket Amount; provided that, the aggregate amount of increases to the Available JV Basket Amount described above shall not exceed the amount of returned Investment and in no event, shall the amount of the increases made to the Available JV Basket Amount in respect of any Investment exceed the amount previously invested pursuant to this clause (n) after the Closing Date;
(o) the Company and its Restricted Subsidiaries may (i) make Investments consisting of forward purchases of commodities used in a Permitted Business in connection with the hedging of prices of such commodities and (ii) purchase options to buy commodities used in a Permitted Business, and purchase and sell options to purchase commodities used in a Permitted Business, in each case in connection with the hedging of prices of such commodities; provided that (x) the aggregate amount of such forward purchases of any such commodity and option purchases in respect of any such commodity shall at no time exceed 75% of the estimated purchases by the Company and its Restricted Subsidiaries of the respective commodity subject thereto over a two year period following each date on which an Investment is made pursuant to this Section 7.05(o) and (y) management of the Company shall have determined in good faith that such forward and/or option purchases are bona fide hedging activities and not for speculative purposes;
(p) the Company and its Restricted Subsidiaries may make additional Investments in an aggregate not to exceed the Available Amount, so long as (i) no Event of Default is continuing or would result therefrom and (ii) the Company is in compliance with the covenants contained in Sections 7.08 and 7.09 as of the most recent fiscal quarter end for which financial statements were required to be delivered pursuant to Section 6.01(a) or 6.01(b), determined on a Pro Forma Basis after giving effect to such Investment;
(q) the Company and its Restricted Subsidiaries may make Investments not otherwise permitted by this Section 7.05 in an aggregate amount not to exceed the greater of (i) $80,000,000 and (ii) 3.25% of Consolidated Total Assets;
(r) Guarantees permitted by Section 7.04 (other than Section 7.04(i)) and transactions permitted by Section 7.02 (other than Section 7.02(c)), in each case to the extent constituting Investments;
(s) Investments in the ordinary course of business consisting of Article 3 endorsements for collection or deposit;
(t) the Company or any of its Restricted Subsidiaries may make advances in the form of a prepayment of expenses to vendors, suppliers and trade creditors, so long as such expenses were incurred in the ordinary course of business, and consistent with the past practices as in effect on the Closing Date;
(u) Investments in the form of industrial revenue bonds (or similar instruments) acquired in connection with IRB Sale-Leaseback Transactions; provided that the Administrative Agent shall have a perfected first-priority security interest in such industrial revenue bonds (or similar instruments) and the rights related thereto pursuant to the relevant Collateral Documents;
(v) Investments made by any Non-Credit Party to the extent such Investments are financed with the proceeds received by such Non-Credit Party from an Investment in such Non-Credit Party permitted under Section 7.05(f);
(w) the Company may use the proceeds of Incremental Term Loans in an aggregate amount not to exceed $100,000.214,500,000 to make intercompany loans and advances to its wholly-owned Foreign Subsidiaries (directly or indirectly);
(x) Investments in any Restricted Subsidiary in connection with the Corporate Restructuring;
(y) advances or extensions of trade credit in the ordinary course of business;
(z) the Company and the Restricted Subsidiaries may make Investments using the net proceeds actually received by the Company from and after the Closing Date from the sale of Equity Interests of the Company (other than (i) Disqualified Preferred Stock, (ii) Equity Interests issued or sold to a Restricted Subsidiary or an employee stock ownership plan or similar trust to the extent such sale to an employee stock ownership plan or similar trust is financed by loans from or Guaranteed by the Company or any Restricted Subsidiary unless such loans have been repaid with cash on or prior to the date of determination and (iii) Equity Interests the net proceeds of which are used to repay long-term Indebtedness for borrowed money (other than revolving loans));
(aa) advances of payroll payments to employees in the ordinary course of business;
(bb) Guarantees by the Company and the Restricted Subsidiaries of leases of the Company and Restricted Subsidiaries (other than Capitalized Lease Obligations) or of other obligations not constituting Indebtedness, in each case entered into in the ordinary course of business and payments thereon or Investments in respect thereof in lieu of such payments;
(i) Investments held by any Restricted Subsidiary acquired after the Closing Date, or of any Person acquired by, or merged into or consolidated or amalgamated with the Company or any Restricted Subsidiary after the Closing Date, in each case as part of an Investment otherwise permitted by this Section 7.05 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger, amalgamation or consolidation and were in existence on the date of the relevant acquisition, merger, amalgamation or consolidation and (ii) any modification, replacement, renewal or extension of any Investment permitted under clause (i) of this
Appears in 1 contract
Samples: Credit Agreement (EnerSys)
Advances; Investments; Loans. Parent The Borrower will not, and will not permit any of its Subsidiaries to, lend money or extend credit or make advances to any Person, or purchase or acquire any stock, obligations or securities of, or any other interest in, or make any capital contribution to, any other Person, or purchase or otherwise acquire (in one or a series of related transactions) all or a material portion of the property or assets or business of another Person (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business) or assets constituting a business unit, line of business or division of any Person or purchase or own a futures contract or otherwise become liable for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract, or hold any cash or Cash EquivalentsEquivalents (each of the foregoing an “Investment” and, exceptcollectively, “Investments”), except that:
(ai) Parent (x) the Borrower and its Subsidiaries may hold or invest in cash and Cash Equivalents, PROVIDED that during any time that Revolving Loans (y) the Chinese Subsidiaries may hold or Swingline Loans are outstanding invest in cash and such cash equivalents as may be required to be maintained pursuant to the Chinese Factoring Program and otherwise acceptable to the Administrative Agent, so long as the aggregate amount of all such cash equivalents does not exceed at any time the amount of the outstanding Chinese Receivables Indebtedness at such time and (z) Foreign Subsidiaries of the Borrower may hold or invest in cash and Cash Equivalents held by Parent such cash equivalents as may be required to be maintained pursuant to any Foreign Receivables Facility and its Subsidiaries shall otherwise acceptable to the Administrative Agent, so long as the aggregate amount of all such cash and cash equivalents does not exceed $1,500,000 for at any period time the amount of three consecutive Business Daysthe outstanding Foreign Receivables Indebtedness in respect of the Foreign Receivables Facilities at such time;
(bii) the Borrower and its Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (including the dating of receivables) of the Borrower or such Subsidiary;
(ciii) the Borrower and its Subsidiaries may acquire and own investments (including debt obligations) received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, Customers customers and suppliers arising in the ordinary course of business;
(div) interest Interest Rate Protection Agreements entered into in compliance with Section 9.04(c10.04(iii) shall be permitted;
(ev) advances, loans and investments Investments in existence on the Initial Borrowing Second Amendment Effective Date and listed on Annex Part A of Schedule VI shall be permitted, without giving effect to any additions thereto or replacements thereof;
(i) the Borrower may make intercompany loans and advances to any Subsidiary Guarantor, (ii) any Subsidiary Guarantor may make intercompany loans and advances to the Borrower or any other Subsidiary Guarantor and (iii) the Borrower may make intercompany loans to the Parent for the purpose of making payments permitted pursuant to Section 9.06(ii) (loans pursuant to clauses (i) (ii) and (iii) of this clause (f) collectively, "Intercompany Loans"), PROVIDED, that (x) each Intercompany Loan shall be evidenced by an Intercompany Note and (y) each such Intercompany Note shall be pledged to the Collateral Agent pursuant to the Pledge Agreement;
(g) loans and advances by the Borrower and its Subsidiaries to employees of Parent and its Subsidiaries for moving and travel expenses and other similar expenses, in each case incurred in the ordinary course of business, in an aggregate outstanding principal amount not to exceed $500,000 at any time (determined without regard to any write-downs or write-offs of such loans and advances), shall be permitted; PROVIDED that up to $300,000 at any time of such outstanding principal amount may constitute loans to employees for purposes of exercising rights to purchase common stock of Parent and/or to make payments with respect to any tax liabilities.
(h) Parent may acquire and hold obligations of one or more officers or other employees of Parent or its Subsidiaries in connection with such officers' or employees' acquisition of shares of Parent Common Stock, so long as no cash is actually advanced by Parent or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(i) (x) Parent, Holdings, and Tri-Star Holdings may make equity contributions, directly in the case of Tri-Star Holdings, or by way of downstream contributions in the case of Parent and or Holdings to the capital of the Borrower and (y) Tri-Star Holdings may make Tri-Star Holdings Asset Contributions;
(j) the Borrower may make Permitted Acquisitions in accordance with the relevant requirements of Section 8.14 and the component definitions as used therein;
(k) Parent and its Subsidiaries may own the capital stock of their respective Subsidiaries created or acquired in accordance with the terms of this Agreement;
(l) the Borrower may make intercompany loans (collectively, the "Intercompany Acquisition Loans") to enable Tri-Star Holdings to pay the merger consideration owing pursuant to the Merger Agreement, so long as (x) Tri-Star Holdings utilizes all of the proceeds of such loans to consummate the merger pursuant to the Merger Agreement and (y) such loans are extinguished, to the extent of the value of the assets contributed, immediately following any Tri-Star Holdings Asset Contribution;
(m) the Borrower may make investments in Wholly Owned Foreign Subsidiaries which are not Subsidiary Guarantors not to exceed $10,000,000 in the aggregate, net of any repayments to the Borrower; and
(n) in addition to investments permitted by clauses (a) through (m) of this Section 9.05, the Borrower and its Subsidiaries may make additional loans, advances and investments to or in a Person not an Affiliate in an aggregate amount for all loans, advances and investments made pursuant to this clause (n) (determined without regard to any write-downs or write-offs thereof), net of cash repayments of principal in the case of loans and cash equity returns (whether as a dividend or redemption) in the case of equity investments, not to exceed $100,000.
Appears in 1 contract
Samples: Credit Agreement (EnerSys)
Advances; Investments; Loans. Parent The Borrower will not, and will not permit any of its Subsidiaries to, lend money or extend credit or make advances to any Person, or purchase or acquire any stock, obligations or securities of, or any other interest in, or make any capital contribution to, any other Person, or purchase or otherwise acquire (in one or a series of related transactions) all or a material portion of the property or assets or business of another Person (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business) or assets constituting a business unit, line of business or division of any Person or purchase or own a futures contract or otherwise become liable for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract, or hold any cash or Cash EquivalentsEquivalents (each of the foregoing an “Investment” and, exceptcollectively, “Investments”), except that:
(ai) Parent (x) the Borrower and its Subsidiaries may hold or invest in cash and Cash Equivalents, PROVIDED that during any time that Revolving Loans (y) the Chinese Subsidiaries may hold or Swingline Loans are outstanding invest in cash and such cash equivalents as may be required to be maintained pursuant to the Chinese Factoring Program and otherwise acceptable to the Administrative Agent, so long as the aggregate amount of all such cash equivalents does not exceed at any time the amount of the outstanding Chinese Receivables Indebtedness at such time and (z) Foreign Subsidiaries of the Borrower may hold or invest in cash and Cash Equivalents held by Parent such cash equivalents as may be required to be maintained pursuant to any Foreign Receivables Facility and its Subsidiaries shall otherwise acceptable to the Administrative Agent, so long as the aggregate amount of all such cash and cash equivalents does not exceed $1,500,000 for at any period time the amount of three consecutive Business Daysthe outstanding Foreign Receivables Indebtedness in respect of the Foreign Receivables Facilities at such time;
(bii) the Borrower and its Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (including the dating of receivables) of the Borrower or such Subsidiary;
(ciii) the Borrower and its Subsidiaries may acquire and own investments (including debt obligations) received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, Customers customers and suppliers arising in the ordinary course of business;
(div) interest Interest Rate Protection Agreements entered into in compliance with Section 9.04(c10.04(iii) shall be permitted;
(ev) advances, loans and investments Investments in existence on the Initial Borrowing Date and listed on Annex Part A of Schedule VI shall be permitted, without giving effect to any additions thereto or replacements thereof;
(i) the Borrower may make intercompany loans and advances to any Subsidiary Guarantor, (ii) any Subsidiary Guarantor may make intercompany loans and advances to the Borrower or any other Subsidiary Guarantor and (iii) the Borrower may make intercompany loans to the Parent for the purpose of making payments permitted pursuant to Section 9.06(ii) (loans pursuant to clauses (i) (ii) and (iii) of this clause (f) collectively, "Intercompany Loans"), PROVIDED, that (x) each Intercompany Loan shall be evidenced by an Intercompany Note and (y) each such Intercompany Note shall be pledged to the Collateral Agent pursuant to the Pledge Agreement;
(g) loans and advances by the Borrower and its Subsidiaries to employees of Parent and its Subsidiaries for moving and travel expenses and other similar expenses, in each case incurred in the ordinary course of business, in an aggregate outstanding principal amount not to exceed $500,000 at any time (determined without regard to any write-downs or write-offs of such loans and advances), shall be permitted; PROVIDED that up to $300,000 at any time of such outstanding principal amount may constitute loans to employees for purposes of exercising rights to purchase common stock of Parent and/or to make payments with respect to any tax liabilities.
(h) Parent may acquire and hold obligations of one or more officers or other employees of Parent or its Subsidiaries in connection with such officers' or employees' acquisition of shares of Parent Common Stock, so long as no cash is actually advanced by Parent or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(i) (x) Parent, Holdings, and Tri-Star Holdings may make equity contributions, directly in the case of Tri-Star Holdings, or by way of downstream contributions in the case of Parent and or Holdings to the capital of the Borrower and (y) Tri-Star Holdings may make Tri-Star Holdings Asset Contributions;
(j) the Borrower may make Permitted Acquisitions in accordance with the relevant requirements of Section 8.14 and the component definitions as used therein;
(k) Parent and its Subsidiaries may own the capital stock of their respective Subsidiaries created or acquired in accordance with the terms of this Agreement;
(l) the Borrower may make intercompany loans (collectively, the "Intercompany Acquisition Loans") to enable Tri-Star Holdings to pay the merger consideration owing pursuant to the Merger Agreement, so long as (x) Tri-Star Holdings utilizes all of the proceeds of such loans to consummate the merger pursuant to the Merger Agreement and (y) such loans are extinguished, to the extent of the value of the assets contributed, immediately following any Tri-Star Holdings Asset Contribution;
(m) the Borrower may make investments in Wholly Owned Foreign Subsidiaries which are not Subsidiary Guarantors not to exceed $10,000,000 in the aggregate, net of any repayments to the Borrower; and
(n) in addition to investments permitted by clauses (a) through (m) of this Section 9.05, the Borrower and its Subsidiaries may make additional loans, advances and investments to or in a Person not an Affiliate in an aggregate amount for all loans, advances and investments made pursuant to this clause (n) (determined without regard to any write-downs or write-offs thereof), net of cash repayments of principal in the case of loans and cash equity returns (whether as a dividend or redemption) in the case of equity investments, not to exceed $100,000.
Appears in 1 contract
Samples: Credit Agreement (EnerSys)
Advances; Investments; Loans. Parent The Borrower will not, and will not permit any of its Subsidiaries to, lend money or extend credit or make advances to any Person, or purchase or acquire any stock, obligations or securities of, or any other interest in, or make any capital contribution to, any other Person, or purchase or own a futures contract or otherwise become liable for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract, or hold any cash or Cash EquivalentsEquivalents (any of the foregoing, an "Investment"), except:
(a) Parent the Borrower and its Subsidiaries may hold or invest in cash and Cash Equivalents, PROVIDED provided that during any time that Revolving Loans or Swingline Loans are outstanding outstanding, the aggregate amount of cash and Cash Equivalents held by Parent the Borrower and its Subsidiaries shall not exceed $1,500,000 10,000,000 for any period of three consecutive Business Days;
(b) the Borrower and its Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (including the dating of receivables) of the Borrower or such Subsidiary;
(c) the Borrower and its Subsidiaries may acquire and own investments (including debt obligationsobligations and equity securities) received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, Customers customers and suppliers arising in the ordinary course of business;
(d) interest Interest Rate Protection Agreements and Other Hedging Agreements entered into in compliance with Section 9.04(c) shall be permitted;
(e) advances, loans and investments in existence on the Initial Borrowing Date and listed on Annex Schedule VI shall be permitted, without giving effect to any additions thereto or replacements thereof, it being understood that any additional Investments made with respect to such existing Investments shall be permitted only if independently justified under the other provisions of this Section 9.05;
(if) the Borrower any Credit Party may make intercompany loans and advances to any other Credit Party and any Foreign Subsidiary Guarantor, (ii) any Subsidiary Guarantor may make intercompany loans and advances to the Borrower or any other Subsidiary Guarantor and (iii) the Borrower may make intercompany loans to the Parent for the purpose of making payments permitted pursuant to Section 9.06(ii) (loans pursuant to clauses (i) (ii) and (iii) of this clause (f) collectively, "Intercompany Loans"), PROVIDEDprovided, that (w) at no time shall the aggregate outstanding principal amount of all Intercompany Loans made pursuant to this clause (f) by the Credit Parties to Foreign Subsidiaries, when added to the amount of contributions, capitalizations and forgivenesses theretofore made pursuant to Section 9.05(o), exceed $15,000,000 (determined without regard to any write-downs or write-offs of such loans and advances), (x) each Intercompany Loan shall be evidenced by an Intercompany Note and (y) each such Intercompany Note shall be pledged to the Collateral Agent pursuant to the U.S. Pledge Agreement;
(g) loans and advances by the Borrower and its Subsidiaries to employees of Parent the Borrower and its Subsidiaries for moving and travel expenses in connection with relocations, purchases by such employees of Borrower Common Stock or options or similar rights to purchase Borrower Common Stock and other similar expenses, in each case incurred in the ordinary course of businessbusiness purposes (including travel and entertainment expenses) shall be permitted, in an so long as the aggregate outstanding principal amount not to exceed $500,000 thereof at any time outstanding (determined without regard to any write-downs or write-offs of such loans and advances), ) shall be permitted; PROVIDED that up to not exceed $300,000 at any time of such outstanding principal amount may constitute loans to employees for purposes of exercising rights to purchase common stock of Parent and/or to make payments with respect to any tax liabilities.5,000,000;
(h) Parent the Borrower may acquire and hold obligations of one or more officers or other employees of Parent the Borrower or its Subsidiaries in connection with such officers' or employees' acquisition of shares of Parent Borrower Common Stock, so long as no cash is actually advanced by Parent the Borrower or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(i) (x) Parent, Holdings, and Tri-Star Holdings may make equity contributions, directly in the case of Tri-Star Holdings, or by way of downstream contributions in the case of Parent and or Holdings to the capital of the Borrower and (y) Triany of its Wholly-Star Holdings may make Tri-Star Holdings Asset Contributions;
(j) the Borrower Owned Domestic Subsidiaries may make Permitted Acquisitions in accordance with the relevant requirements of Section 8.14 and the component definitions as used therein;
(kj) Parent the Borrower and its Subsidiaries may own the capital stock of their respective Subsidiaries created or acquired in accordance with the terms of this AgreementAgreement (so long as all amounts invested in such Subsidiaries are independently justified under another provision of this Section 9.05);
(k) so long as no Default or Event of Default exists or would exist immediately after giving effect to the respective Investment, the Borrower and its Wholly-Owned Domestic Subsidiaries shall be permitted to make Investments in any Joint Venture or any Unrestricted Subsidiary on any date in an amount not to exceed the Available Basket Amount on such date (after giving effect to all prior and contemporaneous adjustments thereto, except as a result of such Investment), it being understood and agreed that to the extent the Borrower or one or more other Credit Parties (after the respective Investment has been made) receives a cash return from the respective Joint Venture or Unrestricted Subsidiary of amounts previously invested pursuant to this clause (k) (which cash return may be made by way of repayment of principal in the case of loans and cash equity returns (whether as a distribution, dividend or redemption) in the case of equity investments) or a return in the form of an asset distribution from the respective Joint Venture or Unrestricted Subsidiary of any asset previously contributed pursuant to this clause (k), then the amount of such cash return of investment or the fair market value of such distributed asset (as determined in good faith by senior management of the Borrower), as the case may be, shall, upon the Administrative Agent's receipt of a certification of the amount of the return of investment from an Authorized Officer, apply to increase the Available Basket Amount, provided that the aggregate amount of increases to the Available Basket Amount described above shall not exceed the amount of returned investment and, in no event, shall the amount of the increases made to the Available Basket Amount in respect of any Investment exceed the amount previously invested pursuant to this clause (k);
(l) the Borrower and its Subsidiaries may make intercompany loans (collectively, the "Intercompany Acquisition Loans"receive and hold promissory notes and other non-cash consideration received in connection with any asset sale permitted by Sections 9.02(d) to enable Tri-Star Holdings to pay the merger consideration owing pursuant to the Merger Agreement, so long as (x) Tri-Star Holdings utilizes all of the proceeds of such loans to consummate the merger pursuant to the Merger Agreement and (y) such loans are extinguished, to the extent of the value of the assets contributed, immediately following any Tri-Star Holdings Asset Contributionk);
(m) the Borrower and its Subsidiaries may convey, lease, license, sell or otherwise transfer or acquire assets and properties to the extent permitted by Sections 9.02(e), (f), (g), (j) and (m);
(n) the Borrower and its Subsidiaries may make investments advances in Wholly Owned the form of a prepayment of expenses, so long as such expenses were incurred in the ordinary course of business and are being paid in accordance with customary trade terms of the Borrower or such Subsidiary;
(o) the Borrower and its Domestic Subsidiaries may make cash capital contributions to Foreign Subsidiaries, and may capitalize or forgive any Indebtedness owed to them by a Foreign Subsidiary and outstanding under clause (f) of this Section 9.05, provided that the aggregate amount of such contributions, capitalizations and forgiveness on and after the Initial Borrowing Date, when added to the aggregate outstanding principal amount of Intercompany Loans made to Foreign Subsidiaries under such clause (f) (determined without regard to any write-downs or write-offs thereof) shall not exceed an amount equal to $15,000,000;
(i) the Borrower and any Subsidiary Guarantor may make cash equity contributions to any (other) Subsidiary Guarantor which are not is a direct Wholly-Owned Subsidiary Guarantors not of the Person making such contribution and (ii) any Subsidiary Guarantor may make non-cash equity contributions to exceed $10,000,000 in any (other) Subsidiary Guarantor which is a direct Wholly-Owned Subsidiary of the aggregateSubsidiary Guarantor making such contribution, net of so long as any repayments security interest granted to the BorrowerCollateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in any assets so contributed shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such contribution) and all actions required to maintain said perfected status have been taken; and
(nq) in addition to investments permitted by clauses (a) through (mp) of this Section 9.05, the Borrower and its Subsidiaries may make additional loans, advances and investments other Investments to or in a Person not an Affiliate in an aggregate amount for all loans, advances and investments other Investments made pursuant to this clause (nq) (determined without regard to any write-downs or write-offs thereof), net of cash repayments of principal in the case of loans loans, sale proceeds in the case of Investments in the form of debt instruments and cash equity returns (whether as a dividend distribution, dividend, redemption or redemptionsale) in the case of equity investments, not to exceed $100,00025,000,000 at any time outstanding.
Appears in 1 contract
Advances; Investments; Loans. Parent Holdings will not, ----------------------------- and will not permit any of its Subsidiaries to, lend money or extend credit or make advances to any Person, or purchase or acquire any stock, obligations or securities of, or any other interest in, or guarantee any Indebtedness or other obligations of, or make any capital contribution to, any Person, or purchase or own a futures contract or otherwise become liable for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract, or hold any cash or Cash EquivalentsEquivalents (any of the foregoing, an "Investment"), except:
(a) Parent the US Borrower and any of its Subsidiaries may hold or invest in cash and Cash Equivalents, PROVIDED that during any time that Revolving Loans or Swingline Loans are outstanding the aggregate amount of cash and Cash Equivalents held by Parent and its Subsidiaries shall not exceed $1,500,000 for any period of three consecutive Business Days;
(b) the US Borrower and any of its Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (including the dating of receivables) of the US Borrower or such Subsidiary;
(c) the US Borrower and any of its Subsidiaries may acquire and own investments (including debt obligationsobligations and equity securities) received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, Customers customers and suppliers arising in the ordinary course of business;
(d) interest Interest Rate Protection Agreements and Other Hedging Agreements entered into in compliance with Section 9.04(c7.04(c) shall be permitted;
(e) advances, loans and investments in existence on the Initial Borrowing Date and listed on Annex VI Schedule XI shall be permitted, without giving effect to any additions thereto or replacements thereof, it being understood that any additional Investments made with respect to such existing Investments shall be permitted only if independently permitted under the other provisions of this Section 7.05;
(if) the US Borrower and any of its Wholly-Owned Subsidiaries may make intercompany loans and advances to any Subsidiary Guarantor, between and among one another (ii) any Subsidiary Guarantor may make intercompany loans and advances to the Borrower or any other Subsidiary Guarantor and (iii) the Borrower may make intercompany loans to the Parent for the purpose of making payments permitted pursuant to Section 9.06(ii) (loans pursuant to clauses (i) (ii) and (iii) of this clause (f) collectively, "Intercompany Loans"), PROVIDED, ; provided that (xi) each Intercompany Loan at no time ------------------ -------- shall be evidenced by an Intercompany Note and (y) each such Intercompany Note shall be pledged to the Collateral Agent pursuant to the Pledge Agreement;
(g) loans and advances by the Borrower and its Subsidiaries to employees of Parent and its Subsidiaries for moving and travel expenses and other similar expenses, in each case incurred in the ordinary course of business, in an aggregate outstanding principal amount of all Intercompany Loans made pursuant to this clause (f) by Credit Parties to Wholly-Owned Subsidiaries that are not Credit Parties, when added to the aggregate amount of contributions, capitalizations and forgiveness theretofore made pursuant to Section 7.05(p) in respect of Wholly-Owned Foreign Subsidiaries that are not Credit Parties, exceed $500,000 at any time 25,000,000 (determined without regard to any write-downs or write-offs of such loans and advances), (ii) (A) the Canadian Intercompany Loan and the UK Intercompany Loan shall each be evidenced by an Intercompany Note (the "Canadian Intercompany Note" and "UK -------------------------- -- Intercompany Note", respectively) (which shall be pledged to the ----------------- Collateral Agent pursuant to the US Collateral and Guaranty Agreement) and (B) the obligations of the Canadian Borrower under the Canadian Intercompany Loan shall be Foreign Obligations guaranteed under the Foreign Guaranty and the obligations of the UK Borrower under the UK Intercompany Loan shall be Foreign Obligations guaranteed under the Foreign Guaranty, (iii) if any such Intercompany Loan (other than the Canadian Intercompany Loan and the UK Intercompany Loan) made by a Credit Party is evidenced by a promissory note or other instrument, such promissory note or other instrument shall be an Intercompany Note and such Intercompany Note shall be pledged to the Collateral Agent to the extent required pursuant to the US Collateral and Guaranty Agreement or the applicable Foreign Pledge Agreement and (iv) each Intercompany Loan made either (A) to the US Borrower or (B) by a Wholly-Owned Foreign Subsidiary to a US Credit Party or by a Non-Credit Party to a Credit Party shall include (or, if not evidenced by an Intercompany Note, the books and records of the respective parties shall note that such Intercompany Loan is subject to) the subordination provisions attached as an Annex to the form of Intercompany Note;
(g) loans and advances by the US Borrower and any of its Subsidiaries to employees of Holdings and any of its Subsidiaries in the ordinary course of business and for bona fide business purposes (including travel and entertainment expenses) shall be permitted; PROVIDED that up to $300,000 , so long as the aggregate principal amount thereof at any time outstanding (determined without regard to any write-downs or write-offs of such outstanding principal amount may constitute loans to employees for purposes of exercising rights to purchase common stock of Parent and/or to make payments with respect to any tax liabilities.and advances) shall not exceed $5,000,000;
(h) Parent Holdings may acquire and hold obligations of one or more officers or other employees of Parent Holdings or any of its Subsidiaries in connection with such officers' or employees' acquisition of shares of Parent Holdings Common Stock, so long as no cash is actually advanced by Parent Holdings or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(i) (x) Parent, Holdings, and Tri-Star Holdings may make equity contributions, directly the Merger Transactions shall be permitted to be consummated in accordance with the case requirements of Tri-Star Holdings, or by way of downstream contributions in the case of Parent and or Holdings to the capital of the Borrower and (y) Tri-Star Holdings may make Tri-Star Holdings Asset ContributionsSection 3.08;
(j) the US Borrower and any of its Wholly-Owned Subsidiaries may make Permitted Acquisitions in accordance with the relevant requirements of Section 8.14 and the component definitions as used therein6.14;
(k) Parent Holdings and its Subsidiaries may own the capital stock of their respective Subsidiaries created or acquired in accordance with the terms of this AgreementAgreement (so long as all amounts invested in such Subsidiaries are independently permitted under another provision of this Section 7.05);
(l) the Borrower may make intercompany loans (collectively, the "Intercompany Acquisition Loans") to enable Tri-Star Holdings to pay the merger consideration owing pursuant to the Merger Agreement, so long as no Default or Event of Default exists or would exist immediately after giving effect to the respective Investment, the US Borrower and any of its Wholly-Owned Subsidiaries shall be permitted to make Investments in any Joint Venture or any Unrestricted Subsidiary on any date in an amount not to exceed the Available Basket Amount on such date (x) Tri-Star Holdings utilizes after giving effect to all of the proceeds prior and contemporaneous adjustments thereto, except as a result of such loans to consummate the merger pursuant to the Merger Agreement Investment), it being understood and (y) such loans are extinguished, agreed that to the extent any Credit Party (after the respective Investment has been made) receives a cash return from the respective Joint Venture or Unrestricted Subsidiary of amounts previously invested pursuant to this clause (1), which cash return may be made by way of repayment of principal in the case of loans and cash equity returns (whether as a distribution, dividend or redemption) in the case of equity investments, or a return in the form of an asset distribution from the respective Joint Venture or Unrestricted Subsidiary of any asset previously contributed pursuant to this clause (1) (excluding the amounts of all Dividends paid by Unrestricted Subsidiaries that are referred to in clause (i) of the proviso to Section 7.06(g)), then the amount of such cash return of investment or the fair market value of such distributed asset (as determined in good faith by senior management of Holdings), as the assets contributedcase may be, immediately following shall, upon the Administrative Agent's receipt of a certification of the amount of the return of investment from an Authorized Officer of 131 Holdings, apply to increase the Available Basket Amount as provided in the definition of Available Basket Amount; provided that the aggregate amount -------- of increases to the Available Basket Amount described above shall not exceed the amount of returned investment and, in no event, shall the amount of the increases made to the Available Basket Amount in respect of any Tri-Star Holdings Asset ContributionInvestment exceed the amount previously invested pursuant to this clause (1);
(m) the US Borrower and any of its Subsidiaries may make investments receive and hold promissory notes and other non-cash consideration received in Wholly Owned Foreign Subsidiaries which are not Subsidiary Guarantors not to exceed $10,000,000 in the aggregate, net of connection with any repayments to the Borrower; andasset sale permitted by Section 7.02(d) and (m);
(n) the US Borrower and any of its Subsidiaries may convey, lease, license, sell or otherwise transfer or acquire assets and properties to the extent permitted by Section 7.02(e), (f), (g), (h) and (1);
(o) the US Borrower and any of its Subsidiaries may make advances in the form of a prepayment of expenses, so long as such expenses were incurred in the ordinary course of business and are being paid in accordance with customary trade terms of the US Borrower or such Subsidiary;
(q) in addition to investments Investments permitted by clauses (a) through (mp) of this Section 9.057.05, the US Borrower and any of its Subsidiaries may make additional loans, advances and investments other Investments to or in a Person not an Affiliate in an aggregate amount for all loans, advances and investments other Investments made pursuant to this clause (nq) (determined without regard to any write-downs or write-offs thereof), net of cash repayments of principal in the case of loans loans, sale proceeds in the case of Investments in the form of debt instruments and cash equity returns (whether as a dividend distribution, dividend, redemption or redemptionsale) in the case of equity investments, not to exceed $100,00035,000,000 at any time outstanding; and
(r) the US Borrower and any of its Subsidiaries may guarantee any Indebtedness or other obligations of another Person to the extent expressly permitted under clauses (a), (f), (g), (k) or (p) of Section 7.04 or clause (d) of Section 7.04 to the extent such guaranty exists on the date of the applicable Permitted Acquisition.
Appears in 1 contract
Advances; Investments; Loans. Parent The Borrower will not, and will not permit any of its Subsidiaries to, lend money or extend credit or make advances to any Person, or purchase or acquire any stock, obligations or securities of, or any other interest in, or make any capital contribution to, any other Person, or purchase or own a futures contract or otherwise become liable for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract, or hold any cash or Cash EquivalentsEquivalents (any of the foregoing, an "INVESTMENT"), except:
(a) Parent the Borrower and its Subsidiaries may hold or invest in cash and Cash Equivalents, PROVIDED that during any time that Revolving Loans or Swingline Loans are outstanding the aggregate amount of cash and Cash Equivalents held by Parent and its Subsidiaries shall not exceed $1,500,000 for any period of three consecutive Business Days;
(b) the Borrower and its Subsidiaries may acquire and hold receivables owing to it, them if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (including the dating of receivables) of the Borrower or such Subsidiary;
(c) the Borrower and its Subsidiaries may acquire and own investments Investments (including debt obligationsobligations and equity securities) received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, Customers customers and suppliers arising in the ordinary course of business;
(di) interest Interest Rate Protection Agreements and Other Hedging Agreements entered into in compliance with Section 9.04(c) shall be permitted and (ii) foreign currency transactions and fund transfers, and Contingent Obligations in respect thereof, contemplated by Section 9.04(h)(i) shall be permitted;
(e) advances, loans and investments in existence on on, or contractually committed as of, the Initial Borrowing Date and listed on Annex VI Schedule 9.05 shall be permitted, without giving effect together with renewals and extensions thereof, so long as the principal amount of such renewal or extension does not exceed the original principal amount of such Investment (it being understood that any additional Investments made with respect to any additions thereto or replacements thereofsuch existing Investments shall be permitted only if independently justified under the other provisions of this Section 9.05);
(if) the Borrower may make intercompany loans and advances to any Subsidiary Guarantor, (ii) any Subsidiary Guarantor may make intercompany loans and advances to the Borrower or and any other Subsidiary Guarantor and (iii) the Borrower may make intercompany loans to the Parent for the purpose of making payments permitted pursuant to Section 9.06(ii) (loans pursuant to clauses collectively, "INTERCOMPANY LOANS"), PROVIDED that (i) (ii) and (iii) at no time shall the aggregate outstanding principal amount of all Intercompany Loans made pursuant to this clause (f) collectivelyby the Credit Parties to Subsidiaries that are not Subsidiary Guarantors, "Intercompany Loans"when added to the amount of contributions, capitalizations and forgivenesses theretofore made pursuant to Section 9.05(o), PROVIDED, that (x) each Intercompany Loan shall be evidenced by an Intercompany Note and (y) each such Intercompany Note shall be pledged to the Collateral Agent pursuant to the Pledge Agreement;
(g) loans and advances by the Borrower and its Subsidiaries to employees of Parent and its Subsidiaries for moving and travel expenses and other similar expenses, in each case incurred in the ordinary course of business, in an aggregate outstanding principal amount not to exceed $500,000 at any time 150,000,000 (determined without regard to any write-downs or write-offs of such loans and advances), (ii) at all times on and after the 15th day following the Initial Borrowing Date (or such later date as the Administrative Agent shall agree in its reasonable discretion), each Intercompany Loan made or outstanding under the foregoing clause (i) shall be evidenced by an Intercompany Note; PROVIDED that Intercompany Loans shall not be required to be evidenced by an Intercompany Note so long as the aggregate outstanding amount of all such Intercompany Loans not evidenced by an Intercompany Note does not exceed $20,000,000 at any time, and with such further exceptions as the Administrative Agent may agree, and (iii) each Intercompany Note held by a Credit Party shall be pledged to the Collateral Agent for the benefit of the Secured Creditors pursuant to a Pledge Agreement;
(g) loans and advances by the Borrower and its Subsidiaries to employees or consultants of the Borrower and its Subsidiaries in connection with relocations, purchases by such employees of Zeus Ordinary Shares or options or similar rights to purchase Zeus Ordinary Shares and other ordinary course of business purposes (including travel and entertainment expenses) shall be permitted; PROVIDED that up to $300,000 , so long as the aggregate principal amount thereof at any time outstanding (determined without regard to any write-downs or write-offs of such outstanding principal amount may constitute loans to employees for purposes of exercising rights to purchase common stock of Parent and/or to make payments with respect to any tax liabilities.and advances) shall not exceed $15,000,000;
(h) Parent the Borrower may acquire and hold obligations of one or more officers or other employees of Parent Zeus or its Subsidiaries in connection with such officers' or employees' acquisition of shares of Parent Common StockZeus Ordinary Shares, so long as no cash is actually advanced by Parent the Borrower or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(i) (x) Parent, Holdings, and Tri-Star Holdings may make equity contributions, directly in the case of Tri-Star Holdings, or by way of downstream contributions in the case of Parent and or Holdings to the capital of the Borrower and (y) Tri-Star Holdings may make Tri-Star Holdings Asset Contributions;
(j) the Borrower its Subsidiaries may make Permitted Acquisitions in accordance with the relevant requirements of Section 8.14 and the component definitions as used thereintherein and any Person that becomes a Subsidiary as a result of any such Permitted Acquisition may hold Investments to the extent such Investments were not made in contemplation of such Permitted Acquisition and were in existence on the date of such Permitted Acquisition;
(kj) Parent the Borrower and its Subsidiaries may own the capital stock of their respective Subsidiaries, Unrestricted Subsidiaries and Joint Ventures (to the extent not Subsidiaries) created or acquired in accordance with the terms of this AgreementAgreement (so long as all amounts invested in such Subsidiaries are independently justified under another provision of this Section 9.05);
(k) so long as no Default or Event of Default exists or would exist immediately after giving effect to the respective Investment, the Borrower and its Subsidiaries shall be permitted to make Investments in any Joint Venture or any Unrestricted Subsidiary; PROVIDED that the sum of (i) the aggregate amount of Investments made (including for such purpose the Fair Market Value of any assets contributed to any Joint Venture (to the extent not a Subsidiary) or Unrestricted Subsidiary (as determined in good faith by senior management of the Borrower), net of Indebtedness and, without duplication, Capitalized Lease Obligations assigned to, and assumed by, the respective Joint Venture or Unrestricted Subsidiary in connection therewith) pursuant to this Section 9.05(k) after the Effective Date, PLUS (ii) the aggregate amount of Indebtedness or other obligations (whether absolute, accrued, contingent or otherwise and whether or not due) of any Joint Venture (to the extent not a Subsidiary) or Unrestricted Subsidiary for which the Borrower or any of its Subsidiaries (other than the respective Joint Venture or Unrestricted Subsidiary) is liable, PLUS (iii) all payments made by the Borrower or any of its Subsidiaries (other than the respective Joint Venture or Unrestricted Subsidiary) in respect of Indebtedness or other obligations of the respective Joint Venture or Unrestricted Subsidiary (including, without limitation, payments in respect of obligations described in preceding clause (ii)) after the Effective Date, MINUS (iv) in the case of any Subsidiary Redesignation, an amount equal to the lesser of (A) the aggregate amount of all cash Investments theretofore made in the Unrestricted Subsidiary subject to such Subsidiary Redesignation and (B) the Fair Market Value (as determined in good faith by the Borrower) of the assets of such Unrestricted Subsidiary (net of all consolidated Indebtedness and other consolidated obligations of such Unrestricted Subsidiary), shall not exceed the lesser of (I) $100,000,000 and (II) when added to the aggregate amount of all Investments made pursuant to Section 9.05(u) after the Effective Date, $250,000,000; PROVIDED that (x) such amount shall be increased by an amount equal to 5% of the cumulative Consolidated EBITDA of the Borrower for the period (taken as one accounting period) from January 1, 2005 to the end of the Borrower's most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 8.01(a) or (b) and (y) to the extent the Borrower or one or more of its Subsidiaries (after the respective Investment has been made) receives a cash return from the respective Joint Venture or Unrestricted Subsidiary of amounts previously invested pursuant to this clause (k) (which cash return may be made by way of repayment of principal in the case of loans and cash equity returns (whether as a distribution, dividend or redemption) in the case of equity investments) or a return in the form of an asset distribution from the respective Joint Venture or Unrestricted Subsidiary of any asset previously contributed pursuant to this clause (k), then the amount of such cash return of investment or the Fair Market Value of such distributed asset (as determined in good faith by senior management of the Borrower), as the case may be, shall, upon the Administrative Agent's receipt of a certification of the amount of the return of investment from an Authorized Officer, apply to increase the amount of Investments permitted to be made pursuant to this clause (k), PROVIDED that the aggregate amount of increases described in this subclause (y) shall not exceed the amount of returned investment and, in no event, shall the amount of the increases to the amount of Investments permitted under this clause (k) exceed the amount previously invested pursuant to this clause (k);
(l) the Borrower and its Subsidiaries may make intercompany loans (collectively, the "Intercompany Acquisition Loans") to enable Trireceive and hold promissory notes and other non-Star Holdings to pay the merger cash consideration owing pursuant to the Merger Agreement, so long as (x) Tri-Star Holdings utilizes all of the proceeds of such loans to consummate the merger pursuant to the Merger Agreement and (y) such loans are extinguished, to the extent of the value of the assets contributed, immediately following received in connection with any Tri-Star Holdings Asset Contributionasset sale permitted by Section 9.02;
(m) the Borrower and its Subsidiaries may Transfer or acquire assets and properties to the extent permitted by Section 9.02;
(n) the Borrower and its Subsidiaries may make investments advances in Wholly Owned Foreign the form of a prepayment of expenses, so long as such expenses were incurred in the ordinary course of business and are being paid in accordance with customary trade terms of the Borrower or such Subsidiary;
(o) the Borrower and its Subsidiaries which may make capital contributions to Subsidiaries that are not Subsidiary Guarantors, and may capitalize or forgive any Indebtedness owed to them by a Subsidiary that is not a Subsidiary Guarantor and outstanding under subclause (i) of clause (f) of this Section 9.05, PROVIDED that the aggregate amount of such contributions, capitalizations and forgiveness on and after the Initial Borrowing Date, when added to the aggregate outstanding principal amount of Intercompany Loans made to Subsidiaries that are not Subsidiary Guarantors under such clause (f) (determined without regard to any write-downs or write-offs thereof) shall not exceed an amount equal to exceed $10,000,000 150,000,000;
(i) the Borrower and any Subsidiary Guarantor may make cash equity contributions to any other Credit Party which is a direct Wholly-Owned Subsidiary of the Person making such contribution and (ii) the Borrower and any Subsidiary Guarantor may make non-cash equity contributions to any other Credit Party which is a direct Wholly-Owned Subsidiary of the Person making such contribution, so long as any security interest granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in any assets so contributed shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such contribution) and all actions required to maintain said perfected status have been taken;
(q) the Borrower and its Subsidiaries may make (i) prepayments under contracts for the construction, launch, operation or insurance of Satellites (and, if the entire Satellite is not owned by the Borrower or any of its Subsidiaries, the portion of the Satellite owned by the Borrower and/or any Subsidiaries) entered into in the aggregateordinary course of business on customary business terms and (ii) any deposit, net advance, loan or extension of credit arising in the ordinary course of business in connection with the sale or lease of satellite capacity or other communication services, operational services, administrative services or any repayments other similar services on customary business terms;
(r) Investments that are made with Excluded Contributions;
(s) (x) any Investment in a Receivables Subsidiary or any Investment by a Receivables Subsidiary in any other Person in connection with a Qualified Receivables Financing, including Investments of funds held in accounts permitted or required by the arrangements governing such Qualified Receivables Financing or any related Indebtedness; provided, however, that any Investment in a Receivables Subsidiary is in the form of a purchase money note, contribution of additional receivables or any equity interest and (y) purchases of receivables pursuant to a Receivables Repurchase Obligation in connection with a Qualified Receivables Refinancing and the Borrowerpayment or distribution of Receivables Fees;
(t) Investments in Subsidiaries, Unrestricted Subsidiaries or Joint Ventures formed for the purpose of selling or leasing transponder capacity to third-party customers in the ordinary course of business which investments are in the form of transfers to such Persons for fair market value transponders or transponder capacity sold or to be sold or leased or to be leased by such Persons; PROVIDED that all such Investments in such Persons do not exceed 10% of the aggregate transponder capacity for all in-orbit transponders then owned by the Borrower and its Subsidiaries; and
(nu) in addition to investments Investments permitted by clauses (a) through (mt) of this Section 9.05, the Borrower and its Subsidiaries may make additional loans, advances and investments other Investments to or in a Person not an Affiliate in an aggregate amount for all loans, advances and investments made pursuant to this clause (n) (determined without regard to any write-write downs or write-write offs thereof), net of cash repayments of principal in the case of loans and cash equity returns (whether as a dividend or redemption) in the case of equity investments, not to exceed exceed, when added to the aggregate amount of Investments made pursuant to Section 9.05(k) (but excluding the increases permitted under clause (y) of the second proviso thereof), $100,000250,000,000, PROVIDED that such amount shall be increased by an amount equal to 5% of the cumulative Consolidated EBITDA of the Borrower for the period (taken as one accounting period) from January 1, 2005 to the end of the Borrower's most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 8.01(a) or (b).
Appears in 1 contract
Samples: Credit Agreement (Intelsat LTD)
Advances; Investments; Loans. Parent The Borrower will not, and will ---------------------------- not permit any of its Subsidiaries to, lend money or extend credit or make advances to any Person, or purchase or acquire any stock, obligations or securities of, or any other interest in, or make any capital contribution to, any other Person, or purchase or own a futures contract or otherwise become liable for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract, or hold any cash or Cash EquivalentsEquivalents (any of the foregoing, an "Investment"), except:
(a) Parent the Borrower and its Subsidiaries may hold or invest in cash and Cash Equivalents, PROVIDED provided that during any time that Revolving Loans or -------- Swingline Loans are outstanding the aggregate amount of cash and Cash Equivalents held by Parent the Borrower and its Subsidiaries (excluding any cash on deposit in the BT Tender Offer Account during the fifteen day period following the Initial Borrowing Date) shall not exceed $1,500,000 for any period of three consecutive Business DaysDays (x) at any time within the 90 day period following the Initial Borrowing Date, $30,000,000, (y) at any time after the 90th day following the Initial Borrowing Date and on or prior to the 180th day following the Initial Borrowing Date, $20,000,000 and (z) at any time thereafter, $10,000,000;
(b) the Borrower and its Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (including the dating of receivables) of the Borrower or such Subsidiary;
(c) the Borrower and its Subsidiaries may acquire and own investments (including debt obligationsobligations and equity securities) received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, Customers customers and suppliers arising in the ordinary course of business;
(d) interest Interest Rate Protection Agreements entered into in compliance with Section 9.04(c) shall be permitted;
(e) advances, loans and investments in existence on the Initial Borrowing Date and listed on Annex Schedule VI shall be permitted, without giving effect to any additions thereto or replacements thereof;
(if) the Borrower may make intercompany loans and advances to any Subsidiary Guarantor, (ii) and any Subsidiary Guarantor may make intercompany loans and advances to the Borrower or any other Subsidiary Guarantor and (iii) the Borrower may make intercompany loans to the Parent for the purpose of making payments permitted pursuant to Section 9.06(ii) (loans pursuant to clauses (i) (ii) and (iii) of this clause (f) collectively, "Intercompany Loans"), PROVIDEDprovided, that (x) each Intercompany -------- Loan shall be evidenced by an Intercompany Note and (y) each such Intercompany Note shall be pledged to the Collateral Agent pursuant to the Pledge Agreement;
(g) loans and advances by the Borrower and its Subsidiaries to employees of Parent the Borrower and its Subsidiaries for moving and travel expenses in connection with relocations, purchases by such employees of Borrower Common Stock or options or similar rights to purchase Borrower Common Stock and other similar expenses, in each case incurred in the ordinary course of businessbusiness purposes shall be permitted, in an so long as the aggregate outstanding principal amount not to exceed $500,000 thereof at any time outstanding (determined without regard to any write-downs or write-offs of such loans and advances), ) shall be permitted; PROVIDED that up to not exceed $300,000 at any time of such outstanding principal amount may constitute loans to employees for purposes of exercising rights to purchase common stock of Parent and/or to make payments with respect to any tax liabilities.5,000,000;
(h) Parent the Borrower may acquire and hold obligations of one or more officers or other employees of Parent the Borrower or its Subsidiaries in connection with such officers' or employees' acquisition of shares of Parent Borrower Common Stock, so long as no cash is actually advanced by Parent the Borrower or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
; (i) (x) Parent, Holdings, and Tri-Star Holdings may make equity contributions, directly in the case of Tri-Star Holdings, or by way of downstream contributions in the case of Parent and or Holdings to the capital of the Borrower and (y) Tri-Star Holdings may make Tri-Star Holdings Asset ContributionsCommon Stock Repurchase shall be permitted;
(j) the Borrower may make Permitted Acquisitions in accordance with the relevant requirements of Section 8.14 and the component definitions as used therein;
(k) Parent and its Subsidiaries may own the capital stock of their respective Subsidiaries created or acquired in accordance with the terms of this Agreement;
(l) the Borrower may make intercompany loans (collectively, the "Intercompany Acquisition Loans") to enable Tri-Star Holdings to pay the merger consideration owing pursuant to the Merger Agreement, so long as (x) Tri-Star Holdings utilizes all of the proceeds of such loans to consummate the merger pursuant to the Merger Agreement and (y) such loans are extinguished, to the extent of the value of the assets contributed, immediately following any Tri-Star Holdings Asset Contribution;
(m) the Borrower may make investments in Wholly Owned Foreign Subsidiaries which are not Subsidiary Guarantors not to exceed $10,000,000 in the aggregate, net of any repayments to the Borrower; and
(n) in addition to investments permitted by clauses (a) through (m) of this Section 9.05, the Borrower and its Subsidiaries may make additional loans, advances and investments to or in a Person not an Affiliate in an aggregate amount for all loans, advances and investments made pursuant to this clause (n) (determined without regard to any write-downs or write-offs thereof), net of cash repayments of principal in the case of loans and cash equity returns (whether as a dividend or redemption) in the case of equity investments, not to exceed $100,000.
Appears in 1 contract
Advances; Investments; Loans. Parent Holdings will not, and will not permit any of its Subsidiaries to, lend money or extend credit or make advances to any Person, or purchase or acquire any stock, obligations or securities of, or any other interest in, or guarantee any Indebtedness or other obligations of, or make any capital contribution to, any Person, or purchase or own a futures contract or otherwise become liable for the purchase or sale 129 of currency or other commodities at a future date in the nature of a futures contract, or hold any cash or Cash EquivalentsEquivalents (any of the foregoing, an "Investment"), except:
(a) Parent the US Borrower and any of its Subsidiaries may hold or invest in cash and Cash Equivalents, PROVIDED that during any time that Revolving Loans or Swingline Loans are outstanding the aggregate amount of cash and Cash Equivalents held by Parent and its Subsidiaries shall not exceed $1,500,000 for any period of three consecutive Business Days;
(b) the US Borrower and any of its Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (including the dating of receivables) of the US Borrower or such Subsidiary;
(c) the US Borrower and any of its Subsidiaries may acquire and own investments (including debt obligationsobligations and equity securities) received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, Customers customers and suppliers arising in the ordinary course of business;
(d) interest Interest Rate Protection Agreements and Other Hedging Agreements entered into in compliance with Section 9.04(c7.04(c) shall be permitted;
(e) advances, loans and investments in existence on the Initial Borrowing Date and listed on Annex VI Schedule XI shall be permitted, without giving effect to any additions thereto or replacements thereof, it being understood that any additional Investments made with respect to such existing Investments shall be permitted only if independently permitted under the other provisions of this Section 7.05;
(if) the US Borrower and any of its Wholly-Owned Subsidiaries may make intercompany loans and advances to any Subsidiary Guarantorbetween and among one another (collectively, (ii) any Subsidiary Guarantor may make intercompany loans and advances to the Borrower or any other Subsidiary Guarantor and (iii) the Borrower may make intercompany loans to the Parent for the purpose of making payments permitted pursuant to Section 9.06(ii) (loans pursuant to clauses "INTERCOMPANY LOANS"); PROVIDED that (i) (ii) and (iii) at no time shall the aggregate outstanding principal amount of all Intercompany Loans made pursuant to this clause (f) collectivelyby Credit Parties to Wholly-Owned Subsidiaries that are not Credit Parties, "Intercompany Loans"), PROVIDED, that (x) each Intercompany Loan shall be evidenced by an Intercompany Note and (y) each such Intercompany Note shall be pledged when added to the Collateral Agent aggregate amount of contributions, capitalizations and forgiveness theretofore made pursuant to the Pledge Agreement;
(gSection 7.05(p) loans and advances by the Borrower and its in respect of Wholly-Owned Foreign Subsidiaries to employees of Parent and its Subsidiaries for moving and travel expenses and other similar expensesthat are not Credit Parties, in each case incurred in the ordinary course of business, in an aggregate outstanding principal amount not to exceed $500,000 at any time 25,000,000 (determined without regard to any write-downs or write-offs of such loans and advances), (ii) (A) the Canadian Intercompany Loan and the UK Intercompany Loan shall each be evidenced by an Intercompany Note (the "CANADIAN INTERCOMPANY NOTE" and "UK INTERCOMPANY NOTE", respectively) (which shall be pledged to the Collateral Agent pursuant to the US Collateral and Guaranty Agreement) and (B) the obligations of the Canadian Borrower under the Canadian Intercompany Loan shall be Foreign Obligations guaranteed under the Foreign Guaranty and the obligations of the UK Borrower under the UK Intercompany Loan shall be Foreign Obligations guaranteed under the Foreign Guaranty, (iii) if any such Intercompany Loan (other than the Canadian Intercompany Loan and the UK Intercompany Loan) made by a Credit Party is evidenced by a promissory note or other instrument, such promissory note or other instrument shall be an Intercompany Note and such Intercompany Note shall be pledged to the Collateral Agent to the extent required pursuant to the US Collateral and Guaranty Agreement or the applicable Foreign Pledge Agreement and (iv) each Intercompany Loan made either (A) to the US Borrower or (B) by a Wholly-Owned Foreign Subsidiary to a US Credit 130 Party or by a Non-Credit Party to a Credit Party shall include (or, if not evidenced by an Intercompany Note, the books and records of the respective parties shall note that such Intercompany Loan is subject to) the subordination provisions attached as an Annex to the form of Intercompany Note;
(g) loans and advances by the US Borrower and any of its Subsidiaries to employees of Holdings and any of its Subsidiaries in the ordinary course of business and for bona fide business purposes (including travel and entertainment expenses) shall be permitted; PROVIDED that up to $300,000 , so long as the aggregate principal amount thereof at any time outstanding (determined without regard to any write-downs or write-offs of such outstanding principal amount may constitute loans to employees for purposes of exercising rights to purchase common stock of Parent and/or to make payments with respect to any tax liabilities.and advances) shall not exceed $5,000,000;
(h) Parent Holdings may acquire and hold obligations of one or more officers or other employees of Parent Holdings or any of its Subsidiaries in connection with such officers' or employees' acquisition of shares of Parent Holdings Common Stock, so long as no cash is actually advanced by Parent Holdings or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(i) (x) Parent, Holdings, and Tri-Star Holdings may make equity contributions, directly the Merger Transactions shall be permitted to be consummated in accordance with the case requirements of Tri-Star Holdings, or by way of downstream contributions in the case of Parent and or Holdings to the capital of the Borrower and (y) Tri-Star Holdings may make Tri-Star Holdings Asset ContributionsSection 3.08;
(j) the US Borrower and any of its Wholly-Owned Subsidiaries may make Permitted Acquisitions in accordance with the relevant requirements of Section 8.14 and the component definitions as used therein6.14;
(k) Parent Holdings and its Subsidiaries may own the capital stock of their respective Subsidiaries created or acquired in accordance with the terms of this AgreementAgreement (so long as all amounts invested in such Subsidiaries are independently permitted under another provision of this Section 7.05);
(l) the Borrower may make intercompany loans (collectively, the "Intercompany Acquisition Loans") to enable Tri-Star Holdings to pay the merger consideration owing pursuant to the Merger Agreement, so long as no Default or Event of Default exists or would exist immediately after giving effect to the respective Investment, the US Borrower and any of its Wholly-Owned Subsidiaries shall be permitted to make Investments in any Joint Venture or any Unrestricted Subsidiary on any date in an amount not to exceed the Available Basket Amount on such date (x) Tri-Star Holdings utilizes after giving effect to all of the proceeds prior and contemporaneous adjustments thereto, except as a result of such loans to consummate the merger pursuant to the Merger Agreement Investment), it being understood and (y) such loans are extinguished, agreed that to the extent any Credit Party (after the respective Investment has been made) receives a cash return from the respective Joint Venture or Unrestricted Subsidiary of amounts previously invested pursuant to this clause (1), which cash return may be made by way of repayment of principal in the case of loans and cash equity returns (whether as a distribution, dividend or redemption) in the case of equity investments, or a return in the form of an asset distribution from the respective Joint Venture or Unrestricted Subsidiary of any asset previously contributed pursuant to this clause (1) (excluding the amounts of all Dividends paid by Unrestricted Subsidiaries that are referred to in clause (i) of the proviso to Section 7.06(g)), then the amount of such cash return of investment or the fair market value of such distributed asset (as determined in good faith by senior management of Holdings), as the assets contributedcase may be, immediately following shall, upon the Administrative Agent's receipt of a certification of the amount of the return of investment from an Authorized Officer of 131 Holdings, apply to increase the Available Basket Amount as provided in the definition of Available Basket Amount; PROVIDED that the aggregate amount of increases to the Available Basket Amount described above shall not exceed the amount of returned investment and, in no event, shall the amount of the increases made to the Available Basket Amount in respect of any Tri-Star Holdings Asset ContributionInvestment exceed the amount previously invested pursuant to this clause (1);
(m) the US Borrower and any of its Subsidiaries may make investments receive and hold promissory notes and other non-cash consideration received in Wholly Owned Foreign Subsidiaries which are not Subsidiary Guarantors not to exceed $10,000,000 in the aggregate, net of connection with any repayments to the Borrower; andasset sale permitted by Section 7.02(d) and (m);
(n) the US Borrower and any of its Subsidiaries may convey, lease, license, sell or otherwise transfer or acquire assets and properties to the extent permitted by Section 7.02(e), (f), (g), (h) and (1);
(o) the US Borrower and any of its Subsidiaries may make advances in the form of a prepayment of expenses, so long as such expenses were incurred in the ordinary course of business and are being paid in accordance with customary trade terms of the US Borrower or such Subsidiary;
(p) the US Borrower and its Wholly-Owned Subsidiaries may make cash capital contributions to their respective Wholly-Owned Subsidiaries, and may capitalize or forgive any Indebtedness owed to them by a Wholly-Owned Foreign Subsidiary and outstanding under clause (f) of this Section 7.05; PROVIDED that the aggregate amount of such contributions, capitalizations and forgiveness on and after the Effective Date made to Wholly-Owned Foreign Subsidiaries that are not Credit Parties, when added to the aggregate outstanding principal amount of Intercompany Loans made to Wholly-Owned Foreign Subsidiaries that are not Credit Parties under such clause (f) (determined without regard to any write-downs or write-offs thereof) shall not exceed an amount equal to $25,000,000;
(q) in addition to investments Investments permitted by clauses (a) through (mp) of this Section 9.057.05, the US Borrower and any of its Subsidiaries may make additional loans, advances and investments other Investments to or in a Person not an Affiliate in an aggregate amount for all loans, advances and investments other Investments made pursuant to this clause (nq) (determined without regard to any write-downs or write-offs thereof), net of cash repayments of principal in the case of loans loans, sale proceeds in the case of Investments in the form of debt instruments and cash equity returns (whether as a dividend distribution, dividend, redemption or redemptionsale) in the case of equity investments, not to exceed $100,00035,000,000 at any time outstanding; and
(r) the US Borrower and any of its Subsidiaries may guarantee any Indebtedness or other obligations of another Person to the extent expressly permitted under clauses (a), (f), (g), (k) or (p) of Section 7.04 or clause (d) of Section 7.04 to the extent such guaranty exists on the date of the applicable Permitted Acquisition.
Appears in 1 contract
Advances; Investments; Loans. The Parent Company will not, and will not permit any of its Restricted Subsidiaries to, lend money or extend credit or make advances to any Person, or purchase or acquire any stockEquity Interests, obligations or securities of, or any other interest in, or make any capital contribution to, any other Person, or purchase or own otherwise acquire (in one or a futures contract series of related transactions) all or otherwise become liable for substantially all of the purchase property or sale assets or business of currency another Person (other than purchases or other commodities at a future date acquisitions of inventory, materials and equipment in the nature ordinary course of business) or assets constituting a futures contractbusiness unit, line of business or hold division of any cash or Cash EquivalentsPerson (each of the foregoing an “Investment” and, except:
collectively, “Investments”), except that: (a) Parent and its Subsidiaries may hold or invest (i) Investments in cash and Cash Equivalents, PROVIDED that during any time that Revolving Loans or Swingline Loans are outstanding the aggregate amount form of cash and Cash Equivalents held by and (ii) Investments described in the investment policy provided to the Administrative Agent on behalf of the Parent and its Subsidiaries Company prior to the Closing Date, in each case shall not exceed $1,500,000 for any period of three consecutive Business Days;
be permitted; (b) the Borrower Parent Company and its Restricted Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (including the dating of receivables) of the Borrower Parent Company or such Restricted Subsidiary;
; (c) the Borrower Parent Company and its Restricted Subsidiaries may acquire and own investments (including debt obligations) received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, Customers customers and suppliers arising in the ordinary course of business;
; (d) interest Rate Protection Swap Agreements entered into in compliance with Section 9.04(c7.04(c) shall be permitted;
; (e) advances, loans and investments (i) Investments in existence on the Initial Borrowing Closing Date and listed on Annex VI Schedule 7.05 and any intercompany Investments outstanding on the Closing Date shall be permitted, without giving effect to any additions thereto or replacements thereof;
(i) the Borrower may make intercompany loans permitted and advances to any Subsidiary Guarantor, (ii) any modification, replacement, renewal or extension of the foregoing; provided that the amount of the original Investment is not increased except by the terms of such Investment or as otherwise permitted by this Section 7.05; (f) Investments made by the Parent Company in or to any Restricted Subsidiary Guarantor may make intercompany loans and advances made by any Restricted Subsidiary in or to the Borrower Parent Company or any other Restricted Subsidiary Guarantor and Guarantees by the Parent Company or any Restricted Subsidiary of obligations of any other 128 CHAR1\1999704v12 Restricted Subsidiary, provided that the amount of any Investment (i) by a Credit Party to a Non- Credit Party and (iiiii) constituting a Guarantee by a Credit Party of obligations of any Non-Credit Party shall not exceed in the Borrower may make intercompany loans aggregate the greater of (A) $100,000,000 and (B) an amount equal to 20.0% of Consolidated EBITDA (as of the Parent most recent fiscal quarter end for the purpose of making payments permitted which financial statements were required to be delivered pursuant to Section 9.06(ii6.01(a) (loans pursuant or 6.01(b), determined on a Pro Forma Basis after giving effect to clauses such Investment) at any time outstanding; provided, further that to the extent constituting Investments, (i) any unsecured Guarantees by the Parent Company or any Restricted Subsidiary of any Indebtedness of Non-Credit Parties, in each case permitted under Section 7.04, and (ii) and (iii) of this clause (f) collectivelyany ordinary course trade receivables held by any Credit Party or Restricted Subsidiary, "Intercompany Loans"), PROVIDED, that (x) each Intercompany Loan shall be evidenced by an Intercompany Note and (y) each such Intercompany Note shall be pledged to excluded from the Collateral Agent pursuant to calculation of the Pledge Agreement;
basket in the foregoing proviso; (g) loans and advances by the Borrower Parent Company and its Restricted Subsidiaries to directors, officers and employees of the Parent Company and its Subsidiaries for moving and travel expenses and other similar expensesRestricted Subsidiaries, in each case incurred in the ordinary course of business, in an aggregate outstanding principal amount not to exceed $500,000 10,000,000 at any time (determined without regard to any write-downs or write-offs of such loans and advances), ) shall be permitted; PROVIDED that up to $300,000 at any time of such outstanding principal amount may constitute loans to employees for purposes of exercising rights to purchase common stock of Parent and/or to make payments with respect to any tax liabilities.
(h) Parent the Credit Parties may acquire and hold obligations of one or more officers or other employees of Parent or its make equity contributions to their respective direct Wholly- Owned Restricted Subsidiaries in connection with such officers' or employees' acquisition of shares of Parent Common Stock, so long as no cash is actually advanced by Parent or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
which are Credit Parties; (i) (x) Parent, Holdings, and Tri-Star Holdings may make equity contributions, directly in the case of Tri-Star Holdings, or by way of downstream contributions in the case of Parent and or Holdings to the capital of the Borrower and (y) Tri-Star Holdings may make Tri-Star Holdings Asset Contributions;
Permitted Acquisitions shall be permitted; (j) the Borrower may make Permitted Acquisitions in accordance with the relevant requirements of Section 8.14 and the component definitions as used therein;
(k) Parent Company and its Restricted Subsidiaries may own the capital stock Equity Interests of their respective Restricted Subsidiaries in existence on the Closing Date or thereafter created or acquired in accordance with the terms of this Agreement;
; (k) any Investments in the Parent Company or any Restricted Subsidiary in connection with intercompany cash management arrangements or related activities arising in the ordinary course of business; (l) the Borrower Parent Company and its Restricted Subsidiaries may acquire and hold non-cash consideration issued by the purchaser of assets in connection with a sale of such assets to the extent permitted by Section 7.02(e); (m) the Parent Company and its Restricted Subsidiaries may enter into Other Hedging Agreements in the ordinary course of business providing protection against fluctuations in currency values in connection with the operations of the Parent Company or any of its Restricted Subsidiaries, so long as management of the Parent Company or such Restricted Subsidiary, as the case may be, has determined in good faith that the entering into of such Other Hedging Agreements are bona fide hedging activities and are not for speculative purposes; (n) the Parent Company and its Restricted Subsidiaries may make intercompany loans (collectively, additional Investments in an aggregate not to exceed the "Intercompany Acquisition Loans") to enable Tri-Star Holdings to pay the merger consideration owing pursuant to the Merger AgreementAvailable Amount, so long as (xi) Tri-Star Holdings utilizes all no Event of Default is continuing or would result therefrom and (ii) the Parent Company is in compliance with the covenants contained in Sections 7.08 and 7.09 as of the proceeds of such loans most recent fiscal quarter end for which financial statements were required to consummate the merger be delivered pursuant to Section 6.01(a) or 6.01(b), determined on a Pro Forma Basis after giving effect to such Investment; (o) the Merger Agreement Parent Company and its Restricted Subsidiaries may make Investments not otherwise permitted by this Section 7.05 in an aggregate amount not to exceed the greater of (i) $150,000,000 and (yii) such loans are extinguishedan amount equal to 30.0% of Consolidated EBITDA (as of the most recent
(i) Investments held by any Restricted Subsidiary acquired after the Closing Date, or of any Person acquired by, or merged into or consolidated or amalgamated with the Parent Company or any Restricted Subsidiary after the Closing Date, in each case as part of an Investment otherwise permitted by this Section 7.05 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger, amalgamation or consolidation and were in existence on the date of the value of the assets contributedrelevant acquisition, immediately following merger, amalgamation or consolidation and (ii) any Tri-Star Holdings Asset Contribution;
(m) the Borrower may make investments in Wholly Owned Foreign Subsidiaries which are not Subsidiary Guarantors not to exceed $10,000,000 in the aggregatemodification, net replacement, renewal or extension of any repayments to the Borrower; and
Investment permitted under clause (n) in addition to investments permitted by clauses (a) through (mi) of this Section 9.057.05(y) so long as no such modification, the Borrower and its Subsidiaries may make additional loans, advances and investments to or in a Person not an Affiliate in an aggregate amount for all loans, advances and investments made pursuant to this clause (n) (determined without regard to any write-downs or write-offs thereof), net of cash repayments of principal in the case of loans and cash equity returns (whether as a dividend or redemption) in the case of equity investments, not to exceed $100,000.replacement,
Appears in 1 contract
Samples: Credit Agreement (SharkNinja, Inc.)
Advances; Investments; Loans. Parent Holdings will not, and will not ---------------------------- permit any of its Subsidiaries to, lend money or extend credit or make advances to any Person, or purchase or acquire any stock, obligations or securities of, or any other interest in, or make any capital contribution to, any Person, or purchase or own a futures contract or otherwise become liable for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract, or hold any cash or Cash EquivalentsEquivalents (any of the foregoing, an "Investment"), except:
(a) Parent SMT and its Subsidiaries may hold or invest in cash and Cash Equivalents, PROVIDED provided that during any time that Revolving Loans or Swingline Loans are -------- outstanding the aggregate amount of cash and Cash Equivalents held by Parent SMT and its Subsidiaries shall not exceed $1,500,000 2,000,000 for any period of three consecutive Business Days;
(b) the Borrower SMT and its Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable dis chargeable in accordance with customary trade terms (including the dating of receivables) of the Borrower SMT or such Subsidiary;
(c) the Borrower SMT and its Subsidiaries may acquire and own investments (including debt obligationsobligations and equity securities) received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, Customers customers and suppliers arising in the ordinary course of business;
(d) interest Interest Rate Protection Agreements entered into in compliance with Section 9.04(c) shall be permitted;
(e) advances, loans and investments in existence on the Initial Borrowing Date and listed on Annex Schedule VI shall be permitted, without giving effect to any additions thereto or replacements thereof;
(if) after the Merger Date, the Borrower may make intercompany loans and advances to any Subsidiary Guarantor, (ii) and any Subsidiary Guarantor may make intercompany loans and advances to the Borrower or any other Subsidiary Guarantor and (iii) the Borrower may make intercompany loans to the Parent for the purpose of making payments permitted pursuant to Section 9.06(ii) (loans pursuant to clauses (i) (ii) and (iii) of this clause (f) collectively, "Intercompany Loans"), PROVIDEDprovided, that -------- (x) each Intercompany Loan shall be evidenced by an Intercompany Note and (y) each such Intercompany Note shall be pledged to the Collateral Agent pursuant to the Pledge Agreement;
(g) loans and advances by the Borrower SMT and its Subsidiaries to employees of Parent Holdings and its Subsidiaries for moving and travel expenses in connection with relocations, purchases by such employees of Holdings Common Stock or options or similar rights to purchase Holdings Common Stock and other similar expenses, in each case incurred in the ordinary course of businessbusiness purposes shall be permitted, in an so long as the aggregate outstanding principal amount not to exceed $500,000 thereof at any time outstanding (determined without regard to any write-write- downs or write-offs of such loans and advances), ) shall be permitted; PROVIDED that up to not exceed $300,000 at any time of such outstanding principal amount may constitute loans to employees for purposes of exercising rights to purchase common stock of Parent and/or to make payments with respect to any tax liabilities.1,000,000;
(h) Parent after the Merger Date, Holdings may acquire and hold obligations of one or more officers or other employees of Parent Holdings or its Subsidiaries in connection with such officers' or employees' acquisition of shares of Parent Holdings Common Stock, so long as no cash is actually advanced by Parent Holdings or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(i) (x) Parent, Holdings, and Tri-Star Holdings may make equity contributions, directly in the case of Tri-Star Holdings, or by way of downstream contributions in the case of Parent and or Holdings to the capital of Acquisition Corp. (or SMT as its successor by merger) and, on the Borrower and (y) Tri-Star Holdings Initial Borrowing Date, not more than $3.0 million of proceeds of Term Loans may make Tri-Star Holdings Asset Contributionsbe loaned by Acquisition Corp. to, or invested by Acquisition Corp. in, SMT as contemplated by Section 7.05(a)(i);
(j) after the Merger Date, the Borrower may make Permitted Acquisitions in accordance with the relevant requirements of Section 8.14 and the component definitions as used therein;
(k) Parent Holdings and its Subsidiaries may own the capital stock of their respective Subsidiaries created or acquired in accordance with the terms of this Agreement;
(l) the Borrower may make intercompany loans (collectively, the "Intercompany Acquisition Loans") to enable Tri-Star Holdings to pay the merger consideration owing pursuant to the Merger Agreement, so long as no Default or Event of Default exists or would exist immediately after giving effect to the respective Investment, SMT shall be permitted to make Investments in any Joint Venture on any date in an amount not to exceed the Available JV Basket Amount on such date (x) Tri-Star Holdings utilizes after giving effect to all of the proceeds prior and contemporaneous adjustments thereto, except as a result of such loans Investment), it being understood and agreed that (i) any such Investment may be in the form of a contribution of an MRI Unit or Units to consummate the merger pursuant to the Merger Agreement such Joint Venture and (yii) such loans are extinguished, to the extent SMT or one or more other Credit Parties (after the respective Investment has been made) receives a cash return from the respective Joint Venture of amounts previously invested pursuant to this clause (l) (which cash return may be made by way of repayment of principal in the case of loans and cash equity returns (whether as a distribution, dividend or redemption) in the case of equity investments), then the amount of such return of investment shall, upon the Agent's receipt of a certification of the value amount of the assets contributedreturn of investment from an Authorized Officer, immediately following apply to increase the Available JV Basket Amount, provided that the aggregate amount of -------- increases to the Available JV Basket Amount described above shall not exceed the amount of returned investment and, in no event, shall the amount of the increases made to the Available JV Basket Amount in respect of any Tri-Star Holdings Asset ContributionInvestment exceed the amount previously invested pursuant to this clause (l);
(m) the Borrower may make investments in Wholly Owned Foreign Subsidiaries which are not Subsidiary Guarantors not to exceed $10,000,000 in the aggregate, net of any repayments to the BorrowerAcquisition shall be permitted; and
(n) in addition to investments permitted by clauses (a) through (m) of this Section 9.05, the Borrower SMT and its Subsidiaries may make additional loans, advances and investments to or in a Person not an Affiliate in an aggregate amount for all loans, advances and investments made pursuant to this clause (n) (determined without with out regard to any write-downs or write-offs thereof), net of cash repayments of principal in the case of loans and cash equity returns (whether as a distribution, dividend or redemption) in the case of equity investments, not to exceed $100,000250,000.
Appears in 1 contract
Advances; Investments; Loans. Parent The Borrowers will not, and will not permit any of its their Subsidiaries to, directly or indirectly, lend money or extend credit or make advances to any Person, or purchase or acquire any stock, obligations or securities of, or any other interest inCapital Stock of, or make any capital contribution to, any PersonPerson (each of the foregoing an "Investment" and, or purchase or own a futures contract or otherwise become liable for the purchase or sale of currency or other commodities at a future date in the nature of a futures contractcollectively, or hold any cash or Cash Equivalents"Investments"), except:
(ai) Parent the Borrowers and its their Subsidiaries may acquire and hold or invest in cash and Cash Equivalents, PROVIDED that during any time that Revolving Loans or Swingline Loans are outstanding the aggregate amount of cash and Cash Equivalents held by Parent and its Subsidiaries shall not exceed $1,500,000 for any period of three consecutive Business Days;
(bii) the Borrower Borrowers and its their Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of its business and payable or dischargeable in accordance with customary trade terms (including the dating of receivables) of the such Borrower or such Subsidiary;
(ciii) the Borrower Borrowers and its their Subsidiaries may acquire and own investments (including debt obligations) received in connection with the bankruptcy or reorganization of suppliers Lessees, suppliers, trade creditors, licensees, licensors and customers and in good faith settlement of delinquent obligations of, and other disputes with, Customers Lessees, suppliers, trade creditors, licensees, licensors and suppliers customers arising in the ordinary course of business;
(div) interest Rate Protection Hedging Agreements entered into in the ordinary course of business or otherwise in compliance with Section 9.04(c9.4(ii) shall be permitted;
(ev) advances, loans and investments in existence on the Initial Borrowing Date and listed on Annex VI shall be permitted, without giving effect to any additions thereto or replacements thereof;
(i) the Borrower may make intercompany loans and advances to any Subsidiary Guarantor, (ii) any Subsidiary Guarantor may make intercompany loans and advances to the Borrower or any other Subsidiary Guarantor and (iii) the Borrower may make intercompany loans to the Parent for the purpose Both of making payments permitted pursuant to Section 9.06(ii) (loans pursuant to clauses (i) (ii) and (iii) of this clause (f) collectively, "Intercompany Loans"), PROVIDED, that (x) each Intercompany Loan shall be evidenced by an Intercompany Note and (y) each such Intercompany Note shall be pledged to the Collateral Agent pursuant to the Pledge Agreement;
(g) loans and advances by the Borrower Borrowers and its their Subsidiaries to officers, employees and directors of Parent the Borrowers and its their Subsidiaries for moving and travel expenses and other similar expensesbona fide business purposes, in each case incurred in the ordinary course of business, in an aggregate outstanding principal amount not to exceed $500,000 at any time (determined without regard to any write-downs or write-offs of such loans and advances), business shall be permitted; PROVIDED that up to $300,000 at any time of such outstanding principal amount may constitute loans to employees for purposes of exercising rights to purchase common stock of Parent and/or to make payments with respect to any tax liabilities.
(h) Parent may acquire and hold obligations of one or more officers or other employees of Parent or its Subsidiaries in connection with such officers' or employees' acquisition of shares of Parent Common Stock, so long as no cash is actually advanced by Parent or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(i) (x) Parent, Holdings, and Tri-Star Holdings may make equity contributions, directly in the case of Tri-Star Holdings, or by way of downstream contributions in the case of Parent and or Holdings to the capital of the Borrower and (y) Tri-Star Holdings may make Tri-Star Holdings Asset Contributions;
(j) advances of reimbursable expenses, including advances for travel and moving expenses, by the Borrower may make Permitted Acquisitions in accordance with the relevant requirements of Section 8.14 Borrowers and the component definitions as used therein;
(k) Parent their Subsidiaries to officers, employees and its Subsidiaries may own the capital stock of their respective Subsidiaries created or acquired in accordance with the terms of this Agreement;
(l) the Borrower may make intercompany loans (collectively, the "Intercompany Acquisition Loans") to enable Tri-Star Holdings to pay the merger consideration owing pursuant to the Merger Agreement, so long as (x) Tri-Star Holdings utilizes all directors of the proceeds of such loans to consummate the merger pursuant to the Merger Agreement Borrowers and (y) such loans are extinguishedtheir Subsidiaries for bona fide purposes, to the extent of the value of the assets contributed, immediately following any Tri-Star Holdings Asset Contribution;
(m) the Borrower may make investments in Wholly Owned Foreign Subsidiaries which are not Subsidiary Guarantors not to exceed $10,000,000 each case incurred in the aggregate, net ordinary course of any repayments to the Borrower; and
(n) in addition to investments permitted by clauses (a) through (m) of this Section 9.05, the Borrower and its Subsidiaries may make additional loans, advances and investments to or in a Person not an Affiliate in an aggregate amount for all loans, advances and investments made pursuant to this clause (n) (determined without regard to any write-downs or write-offs thereof), net of cash repayments of principal in the case of loans and cash equity returns (whether as a dividend or redemption) in the case of equity investments, not to exceed $100,000.business shall be permitted;
Appears in 1 contract
Advances; Investments; Loans. Parent will not, and will not permit any of its Subsidiaries to, lend money or extend credit or make advances to any Person, or purchase or acquire any stock, obligations or securities of, or any other interest in, or make any capital contribution to, any Person, or purchase or own a futures contract or otherwise become liable for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract, or hold any cash or Cash Equivalents, except:
(a) Parent and its Subsidiaries may hold or invest in cash and Cash Equivalents, PROVIDED that during any time that Revolving Loans or Swingline Loans are outstanding the aggregate amount of cash and Cash Equivalents held by Parent and its Subsidiaries shall not exceed $1,500,000 for any period of three consecutive Business Days;
(b) the US Borrower and its Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (including the dating of receivables) of the US Borrower or such Subsidiary;
(c) the US Borrower and its Subsidiaries may acquire and own investments (including debt obligations) received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, Customers customers and suppliers arising in the ordinary course of business;
(d) interest Interest Rate Protection Agreements entered into in compliance with Section 9.04(c) shall be permitted);
(e) advances, loans and investments in existence on the Initial Borrowing Restatement Effective Date and listed on Annex VI shall be permittedVI, without giving effect to any additions thereto or replacements thereof;
(i) the US Borrower may make intercompany loans and advances to any Subsidiary Guarantor, Guarantor and (ii) any Subsidiary Guarantor may make intercompany loans and advances to the US Borrower or any other Subsidiary Guarantor and (iii) the Borrower may make intercompany loans to the Parent for the purpose of making payments permitted pursuant to Section 9.06(ii) (loans pursuant to clauses (i) and (ii) and (iii) of this clause (f) collectively, being collectively referred to as "Intercompany Loans"), PROVIDED, that (x) each Intercompany Loan shall be evidenced by an Intercompany Note and (y) each such Intercompany Note shall be pledged to the Collateral Agent pursuant to the Pledge Agreement;
(g) loans and advances by the US Borrower and its Subsidiaries to employees of Parent and its Subsidiaries for moving and travel expenses and other similar expenses, in each case incurred in the ordinary course of business, in an aggregate outstanding principal amount not to exceed $500,000 at any time (determined without regard to any write-downs or write-offs of such loans and advances), shall be permitted; PROVIDED that up to $300,000 500,000 at any time of such outstanding principal amount may constitute loans to employees for purposes of exercising rights to purchase common stock of Parent and/or to make payments with respect to any tax liabilities.
(h) Parent The US Borrower may acquire and hold obligations of one or more officers or other employees of Parent or its Subsidiaries in connection with such officers' or employees' acquisition of shares of Parent Common Stock, so long as no cash is actually advanced by Parent or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(i) (x) Parent, Holdings, Parent and Tri-Star Holdings may make equity contributions, directly in the case of Tri-Star Holdings, or by way of downstream contributions in the case of Parent and or Holdings Parent, to the capital of the Borrower and (y) Tri-Star Holdings may make Tri-Star Holdings Asset ContributionsUS Borrower;
(j) the US Borrower may make Permitted Acquisitions in accordance with the relevant requirements of Section 8.14 and the component definitions as used therein;
(k) Parent and its Subsidiaries may own the capital stock of their respective Subsidiaries created or acquired in accordance with the terms of this Agreement;
(l) the Borrower may make intercompany loans (collectively, the "Intercompany Acquisition Loans") to enable Tri-Star Holdings to pay the merger consideration owing pursuant to the Merger Agreement, so long as (x) Tri-Star Holdings utilizes all of the proceeds of such loans to consummate the merger pursuant to the Merger Agreement and (y) such loans are extinguished, to the extent of the value of the assets contributed, immediately following any Tri-Star Holdings Asset Contribution;
(m) the US Borrower may make investments in Wholly Owned Foreign Subsidiaries which are not Subsidiary Guarantors not to exceed $10,000,000 in the aggregate, net of any repayments to the Borrower; and
(nm) in addition to investments permitted by clauses (a) through (m) of elsewhere in this Section 9.05, the Borrower and its Subsidiaries may make additional loans, advances and investments to or in a Person not an Affiliate in an aggregate amount for all loans, advances and investments made pursuant to this clause (nm) (determined without regard to any write-downs or write-offs thereof), net of cash repayments of principal in the case of loans and cash equity returns (whether as a dividend or redemption) in the case of equity investments, not to exceed $100,000250,000.
Appears in 1 contract
Advances; Investments; Loans. Parent The Borrower will not, and will not permit any of its Subsidiaries to, lend money or extend credit or make advances to any Person, or purchase or acquire any stock, obligations or securities of, or any other interest in, or make any capital contribution to, any Person, or purchase or own a futures contract or otherwise become liable for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract, or hold any cash or Cash EquivalentsEquivalents (any of the foregoing, an "Investment"), except:
(a) Parent the Borrower and its Subsidiaries may hold or invest in cash and Cash Equivalents, PROVIDED that during any time that Revolving Loans or Swingline Loans are outstanding the aggregate amount of cash and Cash Equivalents held by Parent the Borrower and its Subsidiaries shall not exceed $1,500,000 5,000,000 (exclusive of amounts on deposit reserved for payments to stockholders in connection with the Original Transaction and the MTI Merger) for any period of three consecutive Business Days;
(b) the Borrower and its Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (including the dating of receivables) of the Borrower or such Subsidiary;
(c) the Borrower and its Subsidiaries may acquire and own investments (including debt obligationsobligations and equity securities) received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, Customers customers and suppliers arising in the ordinary course of business;
(d) interest Interest Rate Protection Agreements entered into in compliance with Section 9.04(c) shall be permitted;
(e) advances, loans and investments in existence on the Initial Borrowing Original Effective Date and listed on Annex Schedule VI shall be permitted, without giving effect to any additions thereto or replacements thereof;
(if) the Borrower may make intercompany loans and advances to any Subsidiary Guarantor, (ii) and any Subsidiary Guarantor may make intercompany loans and advances to the Borrower or any other Subsidiary Guarantor and (iii) the Borrower may make intercompany loans to the Parent for the purpose of making payments permitted pursuant to Section 9.06(ii) (loans pursuant to clauses (i) (ii) and (iii) of this clause (f) collectively, "Intercompany Loans"), PROVIDED, PROVIDED that (x) each Intercompany Loan shall be evidenced by an Intercompany Note and (y) each such Intercompany Note shall be pledged to the Collateral Agent pursuant to the Pledge Agreement;
(g) loans and advances by the Borrower and its Subsidiaries to employees of Parent the Borrower and its Subsidiaries for moving and travel expenses in connection with relocations, purchases by such employees of Borrower Common Stock or options or similar rights to purchase Borrower Common Stock and other similar expenses, in each case incurred in the ordinary course of businessbusiness purposes shall be permitted, in an so long as the aggregate outstanding principal amount not to exceed $500,000 thereof at any time outstanding (determined without regard to any write-downs or write-offs of such loans and advances), ) shall be permitted; PROVIDED that up to not exceed $300,000 at any time of such outstanding principal amount may constitute loans to employees for purposes of exercising rights to purchase common stock of Parent and/or to make payments with respect to any tax liabilities.2,500,000;
(h) Parent the Borrower may acquire and hold obligations of one or more officers or other employees of Parent the Borrower or its Subsidiaries in connection with such officers' or employees' acquisition of shares of Parent Borrower Common Stock, so long as no cash is actually advanced by Parent the Borrower or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(i) (x) Parent, Holdings, and Tri-Star Holdings may make equity contributions, directly in the case of Tri-Star Holdings, or by way of downstream contributions in the case of Parent and or Holdings to the capital of the Borrower and (y) Tri-Star Holdings may make Tri-Star Holdings Asset ContributionsMTI Merger shall be permitted;
(j) the Borrower and any of its Wholly-Owned Domestic Subsidiaries may make Permitted Acquisitions in accordance with the relevant requirements of Section 8.14 and the component definitions as used therein;
(k) Parent the Borrower and its Subsidiaries may own the capital stock of their respective Subsidiaries created or acquired in accordance with the terms of this Agreement;
(l) the Borrower may make intercompany loans (collectively, the "Intercompany Acquisition Loans") to enable Tri-Star Holdings to pay the merger consideration owing pursuant to the Merger Agreement, so long as no Default or Event of Default exists or would exist immediately after giving effect to the respective Investment, the Borrower shall be permitted to make Investments in any Joint Venture on any date in an amount not to exceed the Available JV Basket Amount on such date (x) Tri-Star Holdings utilizes after giving effect to all of the proceeds prior and contemporaneous adjustments thereto, except as a result of such loans Investment), it being understood and agreed that (i) any such Investment may be in the form of a contribution of a Healthcare Unit or Units to consummate the merger pursuant to the Merger Agreement such Joint Venture and (yii) such loans are extinguished, to the extent the Borrower or one or more other Credit Parties (after the respective Investment has been made) receives a cash return from the respective Joint Venture of amounts previously invested pursuant to this clause (l) (or clause (l) of Section 9.05 of the value Original Credit Agreement) (which cash return may be made by way of repayment of principal in the case of loans and cash equity returns (whether as a distribution, dividend or redemption) in the case of equity investments), then the amount of such return of investment shall, upon the Administrative Agent's receipt of a certification of the assets contributedamount of the return of investment from an Authorized Officer, immediately following any Tri-Star Holdings Asset Contribution;
(m) apply to increase the Borrower may make investments Available JV Basket Amount, PROVIDED that the aggregate amount of increases to the Available JV Basket Amount described above shall not exceed the amount of returned investment and, in Wholly Owned Foreign Subsidiaries which are not Subsidiary Guarantors not no event, shall the amount of the increases made to exceed $10,000,000 the Available JV Basket Amount in the aggregate, net respect of any repayments Investment exceed the amount previously invested pursuant to this clause (l) (or clause (l) of Section 9.05 of the BorrowerOriginal Credit Agreement); and
(nm) in addition to investments permitted by clauses (a) through (ml) of this Section 9.05, the Borrower and its Subsidiaries may make additional loans, advances and investments Investments to or in a Person not an Affiliate in an aggregate amount for all loans, advances and investments Investments made pursuant to this clause (nm) (determined without regard to any write-downs or write-offs thereof), net of cash repayments of principal in the case of loans loans, sale proceeds in the case of Investments in the form of debt instruments and cash equity returns (whether as a dividend distribution, dividend, redemption or redemptionsale) in the case of equity investments, not to exceed $100,00010,000,000.
Appears in 1 contract
Advances; Investments; Loans. Parent The Borrower will not, and nor will not ---------------------------- the Borrower permit any of its Subsidiaries to, lend money or extend credit or make advances to any Person, or purchase or acquire any stock, obligations or securities of, or any other interest in, or make any capital contribution to, any Person, or purchase or own a futures contract or otherwise become liable for the purchase or sale of currency or other commodities at a future date in the nature of a futures contractcontract (any of the foregoing, or hold any cash or Cash Equivalentsan "Investment"), except:
(a) Parent the Borrower and its Subsidiaries may hold or invest in cash and Cash Equivalents, PROVIDED that during any time that Revolving Loans or Swingline Loans are outstanding the aggregate amount of cash and Cash Equivalents held by Parent and its Subsidiaries shall not exceed $1,500,000 for any period of three consecutive Business Days;
(b) the Borrower and its Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (including the dating of receivables) of the Borrower or such Subsidiary;
(c) the Borrower and its Subsidiaries may acquire and own investments (including debt obligationsobligations and equity securities) received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, Customers customers and suppliers arising in the ordinary course of business;
(d) interest Interest Rate Protection Agreements and Other Hedging Agreements entered into in compliance with Section 9.04(c) shall be permitted;
(e) advances, loans and investments in existence on the Initial Borrowing Restatement Effective Date and listed on Annex VI Schedule IX shall be permitted, without giving effect to any additions thereto or replacements thereof, it being understood that any additional Investments made with respect to such existing Investments shall be permitted only if independently justified under the other provisions of this Section 9.05;
(if) the Borrower any Credit Party may make intercompany loans and advances to any Subsidiary Guarantor, (ii) other Credit Party and any Subsidiary Guarantor Credit Party may make intercompany loans and advances to the Borrower or any other Foreign Subsidiary Guarantor and that is not a Credit Party (iii) the Borrower may make intercompany loans to the Parent for the purpose of making payments permitted pursuant to Section 9.06(ii) (loans pursuant to clauses (i) (ii) and (iii) of this clause (f) collectively, "Intercompany Loans"), PROVIDEDprovided, that (w) at no time shall -------- the aggregate outstanding principal amount of all Intercompany Loans made pursuant to this clause (f) by the Credit Parties to Foreign Subsidiaries, when added to the amount of contributions, capitalizations and forgiveness theretofore made pursuant to Section 9.05(o) exceed $5,000,000 (determined without regard to any write-downs or write-offs of such loans and advances), (x) each Intercompany Loan in excess of $500,000 shall be evidenced by an Intercompany Note and Note, (y) each such Intercompany Note shall be pledged to the Collateral Agent pursuant to the Pledge Agreement;
(g) loans and advances by the Borrower and its Subsidiaries to employees employees, officers and directors of Parent the Borrower and its Subsidiaries for moving and travel expenses in connection with relocations, purchases by such employees of Borrower Common Stock or options or similar rights to purchase Borrower Common Stock and other similar expenses, in each case incurred in the ordinary course of businessbusiness purposes (including travel and entertainment expenses) shall be permitted, in an so long as the aggregate outstanding principal amount not to exceed $500,000 thereof at any time outstanding (determined without regard to any write-downs or write-offs of such loans and advances), ) shall be permitted; PROVIDED that up to not exceed $300,000 at any time of such outstanding principal amount may constitute loans to employees for purposes of exercising rights to purchase common stock of Parent and/or to make payments with respect to any tax liabilities.3,000,000;
(h) Parent the Borrower may acquire and hold obligations of one or more officers or other employees of Parent the Borrower or its Subsidiaries in connection with such officers' or employees' acquisition of shares of Parent Borrower Common Stock, so long as no cash is actually advanced by Parent the Borrower or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(i) (x) Parent, Holdings, and Tri-Star Holdings may make equity contributions, directly in the case of Tri-Star Holdings, or by way of downstream contributions in the case of Parent and or Holdings to the capital of the Borrower and (y) Tri-Star Holdings may make Tri-Star Holdings Asset Contributions;
(j) the Borrower any of its Subsidiaries may make Permitted Acquisitions in accordance with the relevant requirements of Section 8.14 8.13 and the component definitions as used therein;
(kj) Parent the Borrower and its Subsidiaries may own the capital stock of their respective Subsidiaries created or acquired in accordance with the terms of this Agreement;
(k) so long as no Default or Event of Default exists or would exist immediately after giving effect to the respective Investment, the Borrower and its Wholly-Owned Domestic Subsidiaries shall be permitted to make Investments in (x) any Joint Venture on any date in an amount not to exceed the Available Basket Amount on such date and (y) any Unrestricted Subsidiary on any date in an amount not to exceed the Available Basket Sub- Limit on such date (after giving effect to all prior and contemporaneous adjustments thereto, except as a result of such Investment), it being understood and agreed that, to the extent the Borrower or one or more other Credit Parties (after the respective Investment has been made) receives a cash return from the respective Joint Venture or Unrestricted Subsidiary of amounts previously invested pursuant to this clause (k) (which cash return may be made by way of repayment of principal in the case of loans and cash equity returns (whether as a distribution, dividend or redemption) in the case of equity investments) or a return in the form of an asset distribution from the respective Joint Venture or Unrestricted Subsidiary of any asset previously contributed pursuant to this clause (k) then the amount of such cash return of investment or the fair market value of such distributed asset (as determined in good faith by senior management of the Borrower), as the case may be, shall, upon the Administrative Agent's receipt of a certification of the amount of the return of investment from an Authorized Officer, apply to increase the Available Basket Amount and/or the Available Basket Sub-Limit, as applicable, provided that the aggregate -------- amount of increases to the Available Basket Amount and/or the Available Basket Sub-Limit described above shall not exceed the amount of returned investment and, in no event, shall the amount of the increases made to the Available Basket Amount and/or the Available Basket Sub-Limit in respect of any Investment exceed the amount previously invested pursuant to this clause (k);
(l) the Borrower and its Subsidiaries may make intercompany loans receive and hold promissory notes and other non-cash consideration received in connection with any asset sale permitted by Sections 9.02(d), (collectively, the "Intercompany Acquisition Loans"f) to enable Tri-Star Holdings to pay the merger consideration owing pursuant to the Merger Agreement, so long as (x) Tri-Star Holdings utilizes all of the proceeds of such loans to consummate the merger pursuant to the Merger Agreement and (y) such loans are extinguished, to the extent of the value of the assets contributed, immediately following any Tri-Star Holdings Asset Contributionl);
(m) the Borrower and its Subsidiaries may convey, lease, license, sell or otherwise transfer assets and properties to the extent permitted by Sections 9.02(b), (d), (g), (i), (j), (k) and (n);
(n) the Borrower and its Subsidiaries may make advances in the form of a prepayment of expenses, so long as such expenses were incurred in the ordinary course of business and are being paid in accordance with customary trade terms of the Borrower or such Subsidiary;
(o) the Borrower and its Domestic Subsidiaries may make cash capital contributions to Foreign Subsidiaries, and may capitalize or forgive any Indebtedness owed to them by a Foreign Subsidiary and outstanding under clause (f) of this Section 9.05, provided that the aggregate amount of such -------- contributions, capitalizations and forgiveness on and after the Restatement Effective Date, when added to the aggregate outstanding principal amount of Intercompany Loans made to Foreign Subsidiaries under such clause (f) (determined without regard to any write-downs or write-offs thereof) shall not exceed an amount equal to $10,000,000;
(p) the Borrower and its Subsidiaries may make the investments listed on, and in the amounts described on Schedule IX hereto;
(q) the Borrower and any Guarantor may make cash equity contributions to any Guarantor;
(r) the Borrower and its Subsidiaries may make investments in Wholly Owned Foreign Subsidiaries which are not Subsidiary Guarantors not to exceed $10,000,000 in connection with any joint venture with Cendant or affiliates thereof involving the aggregate, net of any repayments to the Borrowerresidential mortgage business; and
(ns) in addition to investments permitted by clauses (a) through (mr) of this Section 9.05, the Borrower and its Subsidiaries may make additional loans, advances and investments Investments to or in a Person not an Affiliate in an aggregate amount for all loans, advances and investments Investments made pursuant to this clause (ns) (determined without regard to any write-downs or write-offs thereof), net of cash repayments of principal in the case of loans loans, sale proceeds in the case of Investments in the form of debt instruments and cash equity returns (whether as a dividend distribution, dividend, redemption or redemptionsale) in the case of equity investments, not to exceed $100,00010,000,000.
Appears in 1 contract
Samples: Credit Agreement (NRT Inc)
Advances; Investments; Loans. Parent No Credit Party will, nor will not, and will not permit any of its Subsidiaries to, lend money or extend credit or make advances to any Person, or purchase or acquire any stock, obligations or securities of, or any other interest in, or make any capital contribution to, any Person, or purchase or own a futures contract or otherwise become liable for the purchase or sale of currency or other commodities at a future date in the nature of a futures contractcontract (each of the foregoing an “Investment” and, or hold any cash or Cash Equivalentscollectively, “Investments”), except:
(ai) Parent and its Subsidiaries may hold or invest in cash and Cash Equivalents, PROVIDED that during any time that Revolving Loans or Swingline Loans are outstanding the aggregate amount of cash and Cash Equivalents held by Parent and its Subsidiaries shall not exceed $1,500,000 for any period of three consecutive Business Days;
(b) the Borrower and its Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (including the dating of receivables) of the Borrower or such SubsidiaryBorrower;
(cii) the Borrower and its Subsidiaries Borrowers may acquire and own investments (including debt obligations) received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, Customers customers and suppliers arising in the ordinary course of business;
(diii) interest Rate Protection Agreements entered the Borrowers may enter into Swap Contracts in compliance with Section 9.04(c) shall be permitted10.4(iii);
(eiv) advances, loans and investments Investments in existence on the Initial Borrowing Effective Date and listed on Annex Schedule VI shall be permitted, without giving effect to any additions thereto or replacements thereof;
(iv) (x) the Borrower Partnership may make intercompany loans and advances to the Borrowers, (y) the Borrowers may make intercompany loans and advances to any Subsidiary Guarantor, other Borrower and (iiz) any Subsidiary Guarantor the Borrowers may make intercompany loans and advances to the Borrower or any other Subsidiary Guarantor and (iii) the Borrower may make intercompany loans to the Parent Partnership for the purpose of making payments permitted pursuant to Section 9.06(ii) (loans pursuant to clauses (i) (ii) 10.6 and (iii) of this clause (f) collectively, "Intercompany Loans"), PROVIDED, that (x) each Intercompany Loan shall be evidenced by an Intercompany Note and (y) each such Intercompany Note shall be pledged to the Collateral Agent pursuant to Partnership or the Pledge AgreementGeneral Partner for the purpose of paying ordinary business expenses;
(gvi) loans and advances by the Borrower any Credit Party to officers and its Subsidiaries to employees of Parent and its Subsidiaries for moving and travel expenses and other similar expensessuch Credit Party, in each case incurred in the ordinary course of business, in an aggregate outstanding principal amount for all Credit Parties not to exceed $500,000 at any time (determined without regard to any write-downs or write-offs of such loans and advances), ) shall be permitted; PROVIDED that up to $300,000 at any time of such outstanding principal amount may constitute loans to employees for purposes of exercising rights to purchase common stock of Parent and/or to make payments with respect to any tax liabilities.
(h) Parent may acquire and hold obligations of one or more officers or other employees of Parent or its Subsidiaries in connection with such officers' or employees' acquisition of shares of Parent Common Stock, so long as no cash is actually advanced by Parent or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(ivii) (x) Parent, Holdings, and Tri-Star Holdings any Credit Party may make cash equity contributions, directly in the case of Tri-Star Holdings, or by way of downstream contributions in the case of Parent and or Holdings to the capital of the Borrower and (y) Tri-Star Holdings may make Tri-Star Holdings Asset Contributionsits Subsidiaries;
(jviii) the Borrower Borrowers may make Permitted Acquisitions in accordance with the relevant requirements of Section 8.14 9.14 and the component definitions as used therein;
(kix) Parent and its Subsidiaries the Credit Parties may own the capital stock Equity Interests of their respective Subsidiaries in existence on the Effective Date or thereafter created or acquired in accordance with the terms of this Agreement;
(lx) the Borrower Borrowers may make intercompany loans (collectively, acquire and hold non-cash consideration issued by the "Intercompany Acquisition Loans") to enable Tri-Star Holdings to pay the merger consideration owing pursuant to the Merger Agreement, so long as (x) Tri-Star Holdings utilizes all purchaser of the proceeds assets in connection with a sale of such loans to consummate the merger pursuant to the Merger Agreement and (y) such loans are extinguished, assets to the extent of the value of the assets contributed, immediately following any Tri-Star Holdings Asset Contributionpermitted by Section 10.2(iv);
(mxi) the Borrower Borrowers may invest Trust Funds in accordance with reasonable business practices and applicable law;
(xii) the Borrowers may make investments in Wholly Owned Foreign Subsidiaries which are not Subsidiary Guarantors not advances to exceed $10,000,000 suppliers in the aggregate, net ordinary course for the purpose of any repayments to the Borrowerprepaying purchases of inventory; and
(nxiii) the Credit Parties may maintain bank accounts and Cash Equivalents in addition to investments permitted by clauses (a) through (m) accordance with the terms of this Section 9.05, the Borrower Security Agreement and its Subsidiaries may make additional loans, advances and investments to or in a Person not an Affiliate in an aggregate amount for all loans, advances and investments made pursuant to this clause (n) (determined without regard to any write-downs or write-offs thereof), net of cash repayments of principal in the case of loans and cash equity returns (whether as a dividend or redemption) in the case of equity investments, not to exceed $100,000other Secured Debt Agreements.
Appears in 1 contract
Advances; Investments; Loans. Parent The Borrower will not, and will ---------------------------- not permit any of its Subsidiaries to, lend money or extend credit or make advances to any Person, or purchase or acquire any stock, obligations or securities of, or any other interest in, or make any capital contribution to, any other Person, or purchase or own a futures contract or otherwise become liable for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract, or hold any cash or Cash EquivalentsEquivalents (any of the foregoing, an "Investment"), except:
(a) Parent the Borrower and its Subsidiaries may hold or invest in cash and Cash Equivalents, PROVIDED provided that during any time that Revolving Loans or -------- Swingline Loans are outstanding the aggregate amount of cash and Cash Equivalents held by Parent the Borrower and its Subsidiaries shall not exceed $1,500,000 10,000,000 for any period of three consecutive Business Days;
(b) the Borrower and its Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (including the dating of receivables) of the Borrower or such Subsidiary;
(c) the Borrower and its Subsidiaries may acquire and own investments (including debt obligationsobligations and equity securities) received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, Customers customers and suppliers arising in the ordinary course of business;
(d) interest Interest Rate Protection Agreements entered into in compliance with Section 9.04(c) shall be permitted;
(e) advances, loans and investments in existence on the Initial Borrowing Original Effective Date and listed on Annex Schedule VI shall be permitted, without giving effect to any additions thereto or replacements thereof;
(if) the Borrower may make intercompany loans and advances to any Subsidiary Guarantor, (ii) and any Subsidiary Guarantor may make intercompany loans and advances to the Borrower or any other Subsidiary Guarantor and (iii) the Borrower may make intercompany loans to the Parent for the purpose of making payments permitted pursuant to Section 9.06(ii) (loans pursuant to clauses (i) (ii) and (iii) of this clause (f) collectively, "Intercompany Loans"), PROVIDED, provided that (x) each Intercompany Loan shall be evidenced by an -------- Intercompany Note and (y) each such Intercompany Note shall be pledged to the Collateral Agent pursuant to the Pledge Agreement;
(g) loans and advances by the Borrower and its Subsidiaries to employees of Parent the Borrower and its Subsidiaries for moving and travel expenses in connection with relocations, purchases by such employees of Borrower Common Stock or options or similar rights to purchase Borrower Common Stock and other similar expenses, in each case incurred in the ordinary course of businessbusiness purposes shall be permitted, in an so long as the aggregate outstanding principal amount not to exceed $500,000 thereof at any time outstanding (determined without regard to any write-downs or write-offs of such loans and advances), ) shall be permitted; PROVIDED that up to not exceed $300,000 at any time of such outstanding principal amount may constitute loans to employees for purposes of exercising rights to purchase common stock of Parent and/or to make payments with respect to any tax liabilities.2,500,000;
(h) Parent the Borrower may acquire and hold obligations of one or more officers or other employees of Parent the Borrower or its Subsidiaries in connection with such officers' or employees' acquisition of shares of Parent Borrower Common Stock, so long as no cash is actually advanced by Parent the Borrower or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(i) (x) Parent, Holdings, and Tri-Star Holdings may make equity contributions, directly in the case of Tri-Star Holdings, or by way of downstream contributions in the case of Parent and or Holdings to the capital of the Borrower and (y) Tri-Star Holdings may make Tri-Star Holdings Asset ContributionsSMT Merger shall be permitted;
(j) the Borrower and any of its Wholly-Owned Domestic Subsidiaries may make Permitted Acquisitions in accordance with the relevant requirements of Section 8.14 and the component definitions as used therein;
(k) Parent the Borrower and its Subsidiaries may own the capital stock of their respective Subsidiaries created or acquired in accordance with the terms of this AgreementAgreement (so long as all amounts invested in such Subsidiaries are independently permitted under another provision of this Section 9.05);
(l) the Borrower may make intercompany loans (collectively, the "Intercompany Acquisition Loans") to enable Tri-Star Holdings to pay the merger consideration owing pursuant to the Merger Agreement, so long as no Default or Event of Default exists or would exist immediately after giving effect to the respective Investment, the Borrower shall be permitted to make Investments in any Joint Venture on any date in an amount not to exceed the Available JV Basket Amount on such date (x) Tri-Star Holdings utilizes after giving effect to all of the proceeds prior and contemporaneous adjustments thereto, except as a result of such loans Investment), it being understood and agreed that (i) any such Investment may be in the form of a contribution of a Healthcare Unit or Units to consummate the merger pursuant to the Merger Agreement such Joint Venture and (yii) such loans are extinguished, to the extent the Borrower or one or more other Credit Parties (after the respective Investment has been made) receives a cash return from the respective Joint Venture of amounts previously invested pursuant to this clause (l) (which cash return may be made by way of repayment of principal in the case of loans and cash equity returns (whether as a distribution, dividend or redemption) in the case of equity investments), then the amount of such return of investment shall, upon the Administrative Agent's receipt of a certification of the value amount of the assets contributedreturn of investment from an Authorized Officer, immediately following apply to increase the Available JV Basket Amount, provided that the aggregate amount of increases -------- to the Available JV Basket Amount described above shall not exceed the amount of returned investment and, in no event, shall the amount of the increases made to the Available JV Basket Amount in respect of any Tri-Star Holdings Asset Contribution;Investment exceed the amount previously invested pursuant to this clause (l) (or clause (l) of Section 9.05 of any of the Original Credit Agreement, the First Amended and Restated Credit Agreement or the Second Amended and Restated Credit Agreement); and
(m) the Borrower and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any asset sale permitted by Section 9.02(d);
(n) the Borrower and its Subsidiaries may convey, lease, license, sell or otherwise transfer or acquire assets and properties to the extent permitted by Sections 9.02(e), (f) and (g);
(o) the Borrower and any Subsidiary Guarantor may make investments in Wholly Owned Foreign cash equity contributions to any (other) Subsidiary Guarantor;
(p) the Borrower and its Subsidiaries which are not Subsidiary Guarantors not to exceed $10,000,000 may make advances in the aggregateform of a prepayment of expenses, net so long as such expenses were incurred in the ordinary course of any repayments to business and are being paid in accordance with customary trade terms of the BorrowerBorrower or such Subsidiary; and
(nq) in addition to investments permitted by clauses (a) through (mp) of this Section 9.05, the Borrower and its Subsidiaries may make additional loans, advances and investments Investments to or in a Person not an Affiliate in an aggregate amount for all loans, advances and investments Investments made pursuant to this clause (nq) (determined without regard to any write-downs or write-offs thereof), net of cash repayments of principal in the case of loans loans, sale proceeds in the case of Investments in the form of debt instruments and cash equity returns (whether as a dividend distribution, dividend, redemption or redemptionsale) in the case of equity investments, not to exceed $100,00015,000,000.
Appears in 1 contract
Advances; Investments; Loans. Parent No Credit Agreement Party will, nor will not, and will not any Credit Agreement Party permit any of its Subsidiaries to, lend money or extend credit or make advances to any Person, or purchase or acquire any stock, obligations or securities of, or any other interest in, or make any capital contribution to, any other Person, or purchase or own a futures contract or otherwise become liable for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract, or hold any cash or Cash EquivalentsEquivalents (any of the foregoing, an "Investment"), except:
(a) Parent Holdings and its Subsidiaries may hold or invest in cash and Cash Equivalents, PROVIDED provided that during any time that Revolving Loans or Swingline Loans are outstanding outstanding, the aggregate amount of cash and Cash Equivalents held by Parent Holdings and its Subsidiaries shall not exceed $1,500,000 5,000,000 for any period of three five consecutive Business Days;
(b) the Borrower and its Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (including the dating of receivables) of the Borrower or such Subsidiary;
(c) the Borrower and its Subsidiaries may acquire and own investments (including debt obligationsobligations and equity securities) received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, Customers customers and suppliers arising in the ordinary course of business;
(d) interest Interest Rate Protection Agreements and Other Hedging Agreements entered into in compliance with Section 9.04(c) shall be permitted;
(e) advances, loans and investments in existence on the Initial Borrowing Date and listed on Annex Schedule VI shall be permitted, without giving effect to any additions thereto or replacements thereof, it being understood that any additional Investments made with respect to such existing Investments shall be permitted only if independently justified under the other provisions of this Section 9.05;
(iI) the Borrower any Credit Party (other than Holdings) may make intercompany loans and advances to any Subsidiary Guarantorother Credit Party (other than Holdings), (iiII) any Subsidiary Guarantor Credit Party (other than Holdings) may make intercompany loans and advances to the Borrower or any other Wholly-Owned Foreign Subsidiary Guarantor of Holdings and (iiiIII) the Borrower any Foreign Subsidiary of Holdings may make intercompany loans and advances to the Parent for the purpose of making payments permitted pursuant to Section 9.06(iiany Credit Party (other than Holdings) (such intercompany loans pursuant and advances referred to in preceding clauses (iI) through (ii) and (iii) of this clause (f) III), collectively, the "Intercompany Loans"), PROVIDEDprovided, that (xw) each Intercompany Loan at no time shall be evidenced by an Intercompany Note and (y) each such Intercompany Note shall be pledged to the Collateral Agent pursuant to the Pledge Agreement;
(g) loans and advances by the Borrower and its Subsidiaries to employees of Parent and its Subsidiaries for moving and travel expenses and other similar expenses, in each case incurred in the ordinary course of business, in an aggregate outstanding principal amount not of all Intercompany Loans made pursuant to this clause (f) by the Credit Parties to Foreign Subsidiaries, when added to the amount of contributions, capitalizations and forgivenesses theretofore made pursuant to Section 9.05(o), exceed $500,000 at any time 7,500,000 (determined without regard to any write-downs or write-offs of such loans and advances), (x) each Intercompany Loan shall be evidenced by an Intercompany Note, (y) each such Intercompany Note shall be pledged to the Collateral Agent pursuant to the U.S. Pledge Agreement and (z) each Intercompany Loan made by any Foreign Subsidiary of Holdings to a Credit Party shall be subject to subordination as, and to the extent required by, the Intercompany Subordination Agreement;
(g) loans and advances by Holdings and its Subsidiaries to employees of Holdings and its Subsidiaries in connection with relocations, purchases by such employees of Holdings Common Stock or options or similar rights to purchase Holdings Common Stock and other ordinary course of business purposes (including travel and entertainment expenses) shall be permitted; PROVIDED that up to $300,000 , so long as the aggregate principal amount thereof at any time outstanding (determined without regard to any write-downs or write-offs of such outstanding principal amount may constitute loans to employees for purposes of exercising rights to purchase common stock of Parent and/or to make payments with respect to any tax liabilities.and advances) shall not exceed $5,000,000;
(h) Parent Holdings may acquire and hold obligations of one or more officers or other employees of Parent Holdings or its Subsidiaries in connection with such officers' or employees' acquisition of shares of Parent Holdings Common Stock, so long as no cash is actually advanced by Parent Holdings or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(i) (x) Parent, Holdings, and Tri-Star Holdings may make equity contributions, directly in the case of Tri-Star Holdings, or by way of downstream contributions in the case of Parent and or Holdings to the capital of the Borrower and (y) Triany of its Wholly-Star Holdings may make Tri-Star Holdings Asset Contributions;
(j) the Borrower Owned Domestic Subsidiaries may make Permitted Acquisitions in accordance with the relevant requirements of Section 8.14 8.15 and the component definitions as used therein;
(kj) Parent Holdings and its Subsidiaries may own the capital stock of their respective Subsidiaries created or acquired in accordance with the terms of this AgreementAgreement (so long as all amounts invested in such Subsidiaries are independently justified under another provision of this Section 9.05);
(k) so long as no Default or Event of Default exists or would exist immediately after giving effect to the respective Investment, the Borrower and its Wholly-Owned Domestic Subsidiaries shall be permitted to make Investments in (x) any Joint Venture on any date in an amount not to exceed the Available Basket Amount on such date and (y) any Unrestricted Subsidiary on any date in an amount not to exceed the Available Basket Sub-Limit on such date (after giving effect to all prior and contemporaneous adjustments thereto, except as a result of such Investment), it being understood and agreed that (i) any such Investment may be in the form of a contribution of a Tractor Trailer or Tractor Trailers to such Joint Venture or Unrestricted Subsidiary and (ii) to the extent the Borrower or one or more other Credit Parties (after the respective Investment has been made) receives a cash return from the respective Joint Venture or Unrestricted Subsidiary of amounts previously invested pursuant to this clause (k) (which cash return may be made by way of repayment of principal in the case of loans and cash equity returns (whether as a distribution, dividend or redemption) in the case of equity investments) or a return in the form of an asset distribution from the respective Joint Venture or Unrestricted Subsidiary of any asset previously contributed pursuant to this clause (k), then the amount of such cash return of investment or the fair market value of such distributed asset (as determined in good faith by senior management of the Borrower), as the case may be, shall, upon the Administrative Agent's receipt of a certification of the amount of the return of investment from an Authorized Officer, apply to increase the Available Basket Amount and/or the Available Basket Sub-Limit, as applicable, provided that the aggregate amount of increases to the Available Basket Amount and/or the Available Basket Sub-Limit described above shall not exceed the amount of returned investment and, in no event, shall the amount of the increases made to the Available Basket Amount and/or the Available Basket Sub-Limit in respect of any Investment exceed the amount previously invested pursuant to this clause (k);
(l) the Borrower and its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any asset sale permitted by Sections 9.02(d), (k), (l) and (n);
(m) the Borrower and its Subsidiaries may convey, lease, license, sell or otherwise transfer or acquire assets and properties to the extent permitted by Sections 9.02(e), (f), (g), (j), (m), (p), (q) and (r);
(n) the Borrower and its Subsidiaries may make (i) advances in the form of a prepayment of expenses, so long as such expenses were incurred in the ordinary course of business and are being paid in accordance with customary trade terms of the Borrower or such Subsidiary and (ii) extend credit to Program Affiliates in connection with purchases on behalf of Program Affiliates to the extent permitted by Section 9.02(q);
(o) the Borrower and its Domestic Subsidiaries may make cash capital contributions to Wholly-Owned Foreign Subsidiaries, and may capitalize or forgive any Indebtedness owed to them by a Wholly-Owned Foreign Subsidiary and outstanding under clause (f) of this Section 9.05, provided that the aggregate amount of such contributions, capitalizations and forgiveness on and after the Initial Borrowing Date, when added to the aggregate outstanding principal amount of Intercompany Loans made to Wholly-Owned Foreign Subsidiaries under such clause (f) (determined without regard to any write-downs or write-offs thereof) shall not exceed an amount equal to $7,500,000;
(i) Holdings may make cash equity contribution to the Borrower, (ii) the Borrower and any Subsidiary Guarantor may make cash equity contributions to any Subsidiary Guarantor which is a direct Wholly-Owned Subsidiary of the Person making such contribution and (iii) any Subsidiary Guarantor may make non-cash equity contributions to any Subsidiary Guarantor which is a direct Wholly-Owned Subsidiary of the Subsidiary Guarantor making such contribution, so long as any security interest granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in any assets so contributed shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such contribution) and all actions required to maintain said perfected status have been taken;
(i) the Borrower may make intercompany loans (collectively, to Holdings on the "Intercompany Acquisition Loans") to enable Tri-Star Holdings to pay the merger consideration owing pursuant to the Merger AgreementRedemption Date, so long as (x) Tri-Star Holdings utilizes all shall have utilized the full amount of the proceeds of such loans intercompany loan on such date to consummate pay accrued interest, principal and related premiums of or on the merger Existing 2006 10% Senior Subordinated Notes and the Existing Junior PIK Notes pursuant to the Merger Agreement Existing Senior Notes Refinancing and (y) any such loans are extinguished, intercompany loan is evidenced by an Intercompany Note pledged to the extent of Collateral Agent pursuant to the value of U.S. Pledge Agreement (it being understood that this subclause (i) shall be alternative to, but duplicative of, the assets contributed, immediately following any Tri-Star Borrower's right to Dividend cash to Holdings Asset Contribution;
on the Redemption Date for such purposes pursuant to Section 9.06(xii)) and (mii) the Borrower may make investments intercompany loans to Holdings in Wholly Owned Foreign Subsidiaries which are not Subsidiary Guarantors not such amount as may be required to exceed $10,000,000 enable Holdings to effect Dividends permitted pursuant to Sections 9.06(xiii), (xiv) and (xv), so long as (x) Holdings shall have utilized the full amount of the proceeds of such intercompany loan to effect such Dividends in accordance with the aggregaterequirements of Section 9.06(xiii), net of (xiv) or (xv), as the case may be, and (y) any repayments such intercompany loan shall be evidenced by an Intercompany Note pledged to the Collateral Agent pursuant to the U.S. Pledge Agreement (it being understood that this subclause (ii) shall be alternative to, but not duplicative of, the Borrower's right to Dividend cash to Holdings for such purposes as set forth in Section 9.06(xvi)); and
(nr) in addition to investments permitted by clauses (a) through (mq) of this Section 9.05, the Borrower and its Subsidiaries may make additional loans, advances and investments other Investments to or in a Person not an Affiliate in an aggregate amount for all loans, advances and investments other Investments made pursuant to this clause (nr) (determined without regard to any write-downs or write-offs thereof), net of cash repayments of principal in the case of loans loans, sale proceeds in the case of Investments in the form of debt instruments and cash equity returns (whether as a dividend distribution, dividend, redemption or redemptionsale) in the case of equity investments, not to exceed $100,00025,000,000 at any time outstanding.
Appears in 1 contract
Advances; Investments; Loans. Parent The Company will not, and will not permit any of its Restricted Subsidiaries to, lend money or extend credit or make advances to any Person, or purchase or acquire any stock, obligations or securities of, or any other interest in, or make any capital contribution to, any other Person, or purchase or own otherwise acquire (in one or a futures contract series of related transactions) all or otherwise become liable for substantially all of the purchase property or sale assets or business of currency another Person (other than purchases or other commodities at a future date acquisitions of inventory, materials and equipment in the nature ordinary course of business) or assets constituting a futures contractbusiness unit, line of business or hold division of any cash or Cash EquivalentsPerson (each of the foregoing an “Investment” and, exceptcollectively, “Investments”), except that:
(a) Parent and its Subsidiaries may hold or invest Investments in cash and Cash Equivalents, PROVIDED that during any time that Revolving Loans or Swingline Loans are outstanding the aggregate amount form of cash and Cash Equivalents held by Parent and its Subsidiaries shall not exceed $1,500,000 for any period of three consecutive Business Daysbe permitted;
(b) the Borrower Company and its Restricted Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (including the dating of receivables) of the Borrower Company or such Restricted Subsidiary;
(c) the Borrower Company and its Restricted Subsidiaries may acquire and own investments (including debt obligations) received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, Customers customers and suppliers arising in the ordinary course of business;
(d) interest Rate Protection Swap Agreements entered into in compliance with Section 9.04(c7.04(c) shall be permitted;
(e) advances, loans and investments (i) Investments in existence on the Initial Borrowing Second Amendment Effective Date and listed on Annex VI Schedule 7.05 and any intercompany Investments outstanding on the Second Amendment Effective Date shall be permittedpermitted and (ii) any modification, without giving effect to any additions thereto replacement, renewal or replacements thereofextension of the foregoing; provided that the amount of the original Investment is not increased except by the terms of such Investment or as otherwise permitted by this Section 7.05;
(f) Investments made by the Company in or to any Restricted Subsidiary and made by any Restricted Subsidiary in or to the Company or any other Restricted Subsidiary and Guarantees by the Company or any Restricted Subsidiary of obligations of any other Restricted Subsidiary, provided that the amount of any Investment (i) the Borrower may make intercompany loans and advances by a Domestic Credit Party to any Subsidiary Guarantora Foreign Subsidiary, (ii) any Subsidiary Guarantor may make intercompany loans and advances by a Foreign Borrower to the Borrower or any other Subsidiary Guarantor and a Non-Credit Party, (iii) the Borrower may make intercompany loans to the Parent for the purpose constituting a Guarantee by a Domestic Credit Party of making payments permitted pursuant to Section 9.06(ii) (loans pursuant to clauses (i) (ii) obligations of any Foreign Subsidiary and (iiiiv) constituting a Guarantee by a Foreign Borrower of this clause (f) collectivelyobligations of any Non-Credit Party shall not exceed in the aggregate the greater of $390,000,000 and 10.50% of Consolidated Total Assets at any time outstanding; provided, "Intercompany Loans"), PROVIDED, further that (x) each Intercompany Loan any unsecured Guarantees by the Company of any Indebtedness of Foreign Subsidiaries permitted under Section 7.04 shall be evidenced by an Intercompany Note and (y) each such Intercompany Note shall be pledged to excluded from the Collateral Agent pursuant to calculation of the Pledge Agreementbasket in the foregoing proviso;
(g) loans and advances by the Borrower Company and its Restricted Subsidiaries to officers and employees of Parent the Company and its Subsidiaries for moving and travel expenses and other similar expensesRestricted Subsidiaries, in each case incurred in the ordinary course of business, in an aggregate outstanding principal amount not to exceed CHAR1\0000000x0 $500,000 10,000,000 at any time (determined without regard to any write-downs or write-offs of such loans and advances), ) shall be permitted; PROVIDED that up to $300,000 at any time of such outstanding principal amount may constitute loans to employees for purposes of exercising rights to purchase common stock of Parent and/or to make payments with respect to any tax liabilities.
(h) Parent may acquire and hold obligations of one or more officers or other employees of Parent or its Subsidiaries in connection with such officers' or employees' acquisition of shares of Parent Common Stock, so long as no cash is actually advanced by Parent or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(i) (x) Parent, Holdings, the Company and Tri-Star Holdings the Domestic Credit Parties may make equity contributions, directly in the case of Tricontributions to their respective direct wholly-Star Holdings, or by way of downstream contributions in the case of Parent and or Holdings to the capital of the Borrower owned Restricted Subsidiaries which are Domestic Credit Parties and (yii) Tri-Star Holdings the Foreign Borrowers may make Triequity contributions to their respective direct wholly-Star Holdings Asset Contributionsowned Restricted Subsidiaries which are Credit Parties;
(i) Permitted Acquisitions shall be permitted;
(j) the Borrower may make Permitted Acquisitions in accordance with the relevant requirements of Section 8.14 and the component definitions as used therein;
(k) Parent Company and its Restricted Subsidiaries may own the capital stock Equity Interests of their respective Restricted Subsidiaries in existence on the Closing Date or thereafter created or acquired in accordance with the terms of this Agreement;
(k) any Investments in any Subsidiary in connection with intercompany cash management arrangements or related activities arising in the ordinary course of business;
(l) the Borrower Company and its Restricted Subsidiaries may make intercompany loans (collectively, acquire and hold non-cash consideration issued by the "Intercompany Acquisition Loans") to enable Tri-Star Holdings to pay the merger consideration owing pursuant to the Merger Agreement, so long as (x) Tri-Star Holdings utilizes all purchaser of the proceeds assets in connection with a sale of such loans to consummate the merger pursuant to the Merger Agreement and (y) such loans are extinguished, assets to the extent of the value of the assets contributed, immediately following any Tri-Star Holdings Asset Contributionpermitted by Section 7.02(e);
(m) the Borrower Company and its Restricted Subsidiaries may make investments enter into Other Hedging Agreements in Wholly Owned Foreign Subsidiaries which the ordinary course of business providing protection against fluctuations in currency values in connection with the operations of the Company or any of its Restricted Subsidiaries, so long as management of the Company or such Restricted Subsidiary, as the case may be, has determined in good faith that the entering into of such Other Hedging Agreements are bona fide hedging activities and are not Subsidiary Guarantors not to exceed $10,000,000 in the aggregate, net of any repayments to the Borrower; andfor speculative purposes;
(n) in addition so long as no Event of Default exists or would exist immediately after giving effect to investments permitted by clauses (a) through (m) of this Section 9.05the respective Investment, the Borrower Company and its Restricted Subsidiaries may shall be permitted to make additional loans, advances Investments in any Joint Venture and investments to or in a Person not an Affiliate any Unrestricted Subsidiary on any date in an aggregate amount for not to exceed the Available JV Basket Amount on such date (after giving effect to all loansprior and contemporaneous adjustments thereto, advances except as a result of such Investment), it being understood and investments made agreed that to the extent the Company or one or more other Restricted Subsidiaries (after the respective Investment has been made) receives a cash return from the respective Joint Venture or Unrestricted Subsidiary, as applicable, of amounts previously invested pursuant to this clause (n) after the Closing Date (determined without regard to any write-downs or write-offs thereof), net which cash return may be made by way of cash repayments repayment of principal in the case of loans and cash equity returns (whether as a distribution, dividend or redemption) in the case of equity investments) or a return in the form of an asset distribution from the respective Joint Venture or Unrestricted Subsidiary, as applicable, of any asset previously contributed pursuant to this clause (n) after the Closing Date, then the amount of such cash return of investment or the fair market value of such distributed asset (as determined in good faith by senior management of the Company), as the case may be, shall apply to increase the Available JV Basket Amount; provided that, the aggregate amount of increases to the Available JV Basket Amount described above shall not exceed the amount of returned Investment and in no event, shall the amount of the increases made to the Available JV Basket Amount in respect of any Investment exceed the amount previously invested pursuant to this clause (n) after the Closing Date;
(o) the Company and its Restricted Subsidiaries may (i) make Investments consisting of forward purchases of commodities used in a Permitted Business in connection with the hedging of prices of such commodities and (ii) purchase options to buy commodities used in a Permitted Business, and purchase and sell options to purchase commodities used in a Permitted Business, in each case in connection with the hedging of prices of such commodities; provided that (x) the aggregate amount of such forward purchases of any such commodity and option purchases in respect of any such commodity shall at no time exceed 75% of the estimated purchases by the Company and its Restricted Subsidiaries of the respective commodity subject thereto over a two year period following each date on which an Investment is made pursuant to CHAR1\0000000x0 this Section 7.05(o) and (y) management of the Company shall have determined in good faith that such forward and/or option purchases are bona fide hedging activities and not for speculative purposes;
(p) the Company and its Restricted Subsidiaries may make additional Investments in an aggregate not to exceed the Available Amount, so long as (i) no Event of Default is continuing or would result therefrom and (ii) the Company is in compliance with the covenants contained in Sections 7.08 and 7.09 as of the most recent fiscal quarter end for which financial statements were required to be delivered pursuant to Section 6.01(a) or 6.01(b), determined on a Pro Forma Basis after giving effect to such Investment;
(q) the Company and its Restricted Subsidiaries may make Investments not otherwise permitted by this Section 7.05 in an aggregate amount not to exceed the greater of (i) $200,000,000 and (ii) 5.25% of Consolidated Total Assets;
(r) Guarantees permitted by Section 7.04 (other than Section 7.04(i)) and transactions permitted by Section 7.02 (other than Section 7.02(c)), in each case to the extent constituting Investments;
(s) Investments in the ordinary course of business consisting of Article 3 endorsements for collection or deposit;
(t) the Company or any of its Restricted Subsidiaries may make advances in the form of a prepayment of expenses to vendors, suppliers and trade creditors, so long as such expenses were incurred in the ordinary course of business, and consistent with the past practices as in effect on the Closing Date;
(u) Investments in the form of industrial revenue bonds (or similar instruments) acquired in connection with IRB Sale-Leaseback Transactions; provided that the Administrative Agent shall have a perfected first-priority security interest in such industrial revenue bonds (or similar instruments) and the rights related thereto pursuant to the relevant Collateral Documents;
(v) Investments made by any Non-Credit Party to the extent such Investments are financed with the proceeds received by such Non-Credit Party from an Investment in such Non-Credit Party permitted under Section 7.05(f);
(w) the Company may use the proceeds of Incremental Term Loans in an aggregate amount not to exceed $100,000214,500,000 to make intercompany loans and advances to its wholly-owned Foreign Subsidiaries (directly or indirectly);
(x) Investments in any Restricted Subsidiary in connection with the Corporate Restructuring;
(y) advances or extensions of trade credit in the ordinary course of business;
(z) the Company and the Restricted Subsidiaries may make Investments using the net proceeds actually received by the Company from and after the Closing Date from the sale of Equity Interests of the Company (other than (i) Disqualified Preferred Stock, (ii) Equity Interests issued or sold to a Restricted Subsidiary or an employee stock ownership plan or similar trust to the extent such sale to an employee stock ownership plan or similar trust is financed by loans from or Guaranteed by the Company or any Restricted Subsidiary unless such loans have been repaid with cash on or prior to the date of determination and (iii) Equity Interests the net proceeds of which are used to repay long-term Indebtedness for borrowed money (other than revolving loans));
(aa) advances of payroll payments to employees in the ordinary course of business; CHAR1\0000000x0
(bb) Guarantees by the Company and the Restricted Subsidiaries of leases of the Company and Restricted Subsidiaries (other than Capitalized Lease Obligations) or of other obligations not constituting Indebtedness, in each case entered into in the ordinary course of business and payments thereon or Investments in respect thereof in lieu of such payments;
(i) Investments held by any Restricted Subsidiary acquired after the Closing Date, or of any Person acquired by, or merged into or consolidated or amalgamated with the Company or any Restricted Subsidiary after the Closing Date, in each case as part of an Investment otherwise permitted by this Section 7.05 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger, amalgamation or consolidation and were in existence on the date of the relevant acquisition, merger, amalgamation or consolidation and (ii) any modification, replacement, renewal or extension of any Investment permitted under clause (i) of this Section 7.05(cc) so long as no such modification, replacement, renewal or extension thereof increases the amount of such Investment except as otherwise permitted by this Section 7.05;
(dd) Investments in any Receivables Subsidiary consisting of (i) the contributions of accounts receivable (and rights ancillary thereto) to the extent required or made pursuant to a Receivables Facility or a Foreign Receivables Facility and (ii) loans or advances to such Receivables Subsidiary for the purchase price of accounts receivable (and rights ancillary thereto) pursuant to a Receivables Facility or a Foreign Receivables Facility, in each case, so long as any applicable Receivables Facilities Indebtedness or Foreign Receivable Indebtedness arising from such Receivables Facility or Foreign Receivables Facility, respectively, is permitted pursuant to Section 7.04; and
(ee) the Company and its Restricted Subsidiaries may make Investments not otherwise permitted under this Section 7.05, so long as (i) no Event of Default shall have occurred and be continuing at the time such Indebtedness is incurred, (ii) the Company shall be in compliance with the financial covenants contained in Sections 7.08 and 7.09 as of the most recent fiscal quarter end for which financial statements were required to be delivered pursuant to Section 6.01(a) or 6.01(b), determined on a Pro Forma Basis after giving effect to the incurrence of any such Investment and (ii) either (x) the Consolidated Total Net Leverage Ratio shall be less than 2.75 to 1.00 as of the most recent fiscal quarter end for which financial statements were required to be delivered pursuant to Section 6.01(a) or 6.01(b), determined on a Pro Forma Basis after giving effect to the incurrence of any such Investment or (y) the non-credit-enhanced, senior secured long-term debt rating of the credit facilities under this Agreement shall be rated as least Baa3 by Xxxxx’x and BBB- by S&P. For purposes of compliance with this Section 7.05, the amount of any Investment shall be the amount actually invested (measured at the time made), without adjustment for subsequent increases or decreases in the value of such Investment but giving effect to any returns or distributions of capital or repayment of principal actually received in cash by such other Person with respect thereto (but only to the extent that the aggregate amount of all such returns, distributions and repayments with respect to such Investment does not exceed the principal amount of such Investment and less any such amount which increases the Available Amount or the Available JV Basket Amount). Any Investment that exceeds the limits of any particular clause set forth above may be allocated amongst more than one of such clauses to permit the incurrence of holding of such Investment to the extent such excess is permitted as an Investment under such other clauses.
Appears in 1 contract
Samples: Credit Agreement (EnerSys)
Advances; Investments; Loans. Parent Holdings will not, and will not ---------------------------- permit any of its Subsidiaries to, lend money or extend credit or make advances to any Person, or purchase or acquire any stock, obligations or securities of, or any other interest in, or make any capital contribution to, any Person, or purchase or own a futures contract or otherwise become liable for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract, or hold any cash or Cash EquivalentsEquivalents (any of the foregoing, an "Investment"), except:
(a) Parent RPP USA and any of its Subsidiaries may hold or invest in cash and Cash Equivalents, PROVIDED provided that during any time that (i) Revolving Loans or Swingline -------- Loans are outstanding and (ii) the Total Revolving Loan Commitment exceeds $40,000,000, the aggregate amount of cash and Cash Equivalents held by Parent RPP USA and its Subsidiaries shall not exceed $1,500,000 20,000,000 for any period of three consecutive Business Days;
(b) the Borrower RPP USA and any of its Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (including the dating of receivables) of the Borrower RPP USA or such Subsidiary;
(c) the Borrower RPP USA and any of its Subsidiaries may acquire and own investments (including debt obligationsobligations and equity securities) received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, Customers customers and suppliers arising in the ordinary course of business;
(d) interest Interest Rate Protection Agreements and Other Hedging Agreements entered into in compliance with Section 9.04(c) shall be permitted;
(e) advances, loans and investments in existence on the Initial Borrowing Date and listed on Annex VI Schedule X shall be permitted, without giving effect to any additions thereto or replacements thereof, it being understood that any additional Investments made with respect to such existing Investments shall be permitted only if independently justified under the other provisions of this Section 9.05;
(if) the Borrower RPP USA and any of its Wholly-Owned Subsidiaries may make intercompany loans and advances to any Subsidiary Guarantor, between and among one another (ii) any Subsidiary Guarantor may make intercompany loans and advances to the Borrower or any other Subsidiary Guarantor and (iii) the Borrower may make intercompany loans to the Parent for the purpose of making payments permitted pursuant to Section 9.06(ii) (loans pursuant to clauses (i) (ii) and (iii) of this clause (f) collectively, "Intercompany Loans"), PROVIDED, provided that (xi) each Intercompany Loan at no time shall be evidenced by an Intercompany Note and (y) each such Intercompany Note shall be pledged to the Collateral Agent pursuant to the Pledge Agreement;
(g) loans and advances by the Borrower and its Subsidiaries to employees of Parent and its Subsidiaries for moving and travel expenses and other similar expenses, in each case incurred in the ordinary course of business, in an aggregate -------- outstanding principal amount of all Intercompany Loans made pursuant to this clause (f) by the Credit Parties to Wholly-Owned Subsidiaries that are not Credit Parties, when added to the aggregate amount of contributions, capitalizations and forgiveness theretofore made pursuant to Section 9.05(p) in respect of Wholly-Owned Foreign Subsidiaries that are not Credit Parties, exceed $500,000 at any time 25,000,000 (determined without regard to any write-downs or write-offs of such loans and advances), (ii) if any such Intercompany Loan made by a Credit Party is evidenced by a promissory note or other instrument, such promissory note or other instrument shall be an Intercompany Note and such Intercompany Note shall be pledged to the Collateral Agent to the extent required pursuant to the applicable Pledge Agreement, and (iii) each Intercompany Loan made either (x) to any US Borrower or (y) by a Wholly-Owned Foreign Subsidiary to a US Credit Party or by a Non-Credit Party to a Credit Party shall include (or, if not evidenced by an Intercompany Note, the books and records of the respective parties shall note that such Intercompany Loan is subject to) the subordination provisions attached as an Annex to the form of Intercompany Note;
(g) loans and advances by RPP USA and any of its Subsidiaries to employees of Holdings and any of its Subsidiaries in the ordinary course of business and for bona fide business purposes (including travel and entertainment expenses) shall be permitted; PROVIDED that up to $300,000 , so long as the aggregate principal amount thereof at any time outstanding (determined without regard to any write-downs or write- offs of such outstanding principal amount may constitute loans to employees for purposes of exercising rights to purchase common stock of Parent and/or to make payments with respect to any tax liabilities.and advances) shall not exceed $5,000,000;
(h) Parent Holdings may acquire and hold obligations of one or more officers or other employees of Parent Holdings or any of its Subsidiaries in connection with such officers' or employees' acquisition of shares of Parent Holdings Common Stock, so long as no cash is actually advanced by Parent Holdings or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(i) (x) Parent, Holdings, and Tri-Star Holdings may make equity contributions, directly the Recapitalization shall be permitted to be consummated in accordance with the case requirements of Tri-Star Holdings, or by way of downstream contributions in the case of Parent and or Holdings to the capital of the Borrower and (y) Tri-Star Holdings may make Tri-Star Holdings Asset ContributionsSection 5.08;
(j) the Borrower RPP USA and any of its Wholly-Owned Subsidiaries may make Permitted Acquisitions in accordance with the relevant requirements of Section 8.14 and the component definitions as used therein8.14;
(k) Parent Holdings and its Subsidiaries may own the capital stock of their respective Subsidiaries created or acquired in accordance with the terms of this AgreementAgreement (so long as all amounts invested in such Subsidiaries are independently justified under another provision of this Section 9.05);
(l) the Borrower may make intercompany loans (collectively, the "Intercompany Acquisition Loans") to enable Tri-Star Holdings to pay the merger consideration owing pursuant to the Merger Agreement, so long as no Default or Event of Default exists or would exist immediately after giving effect to the respective Investment, RPP USA and any of its Wholly-Owned Subsidiaries shall be permitted to make Investments in any Joint Venture or any Unrestricted Subsidiary on any date in an amount not to exceed the Available Basket Amount on such date (x) Tri-Star Holdings utilizes after giving effect to all of the proceeds prior and contemporaneous adjustments thereto, except as a result of such loans to consummate the merger pursuant to the Merger Agreement Investment), it being understood and agreed that (yi) such loans are extinguished, to the extent any Credit Parties (after the respective Investment has been made) receives a cash return from the respective Joint Venture or Unrestricted Subsidiary of amounts previously invested pursuant to this clause (l) (which cash return may be made by way of repayment of principal in the case of loans and cash equity returns (whether as a distribution, dividend or redemption) in the case of equity investments) or a return in the form of an asset distribution from the respective Joint Venture or Unrestricted Subsidiary of any asset previously contributed pursuant to this clause (l), then the amount of such cash return of investment or the fair market value of such distributed asset (as determined in good faith by senior management of Holdings), as the case may be, shall, upon the Administrative Agent's receipt of a certification of the value amount of the assets contributedreturn of investment from an Authorized Officer of Holdings, immediately following apply to increase the Available Basket Amount, provided that the -------- aggregate amount of increases to the Available Basket Amount described above shall not exceed the amount of returned investment and, in no event, shall the amount of the increases made to the Available Basket Amount in respect of any Tri-Star Holdings Asset ContributionInvestment exceed the amount previously invested pursuant to this clause (l);
(m) RPP USA and any of its Subsidiaries may receive and hold promissory notes and other non-cash consideration received in connection with any asset sale permitted by Sections 9.02(d), (m) and (n);
(n) RPP USA and any of its Subsidiaries may convey, lease, license, sell or otherwise transfer or acquire assets and properties to the Borrower extent permitted by Sections 9.02(e), (f), (g), (h) and (l);
(o) RPP USA and any of its Subsidiaries may make investments advances in Wholly the form of a prepayment of expenses, so long as such expenses were incurred in the ordinary course of business and are being paid in accordance with customary trade terms of RPP USA or such Subsidiary;
(p) RPP USA and its Wholly-Owned Subsidiaries may make cash capital contributions to their respective Wholly-Owned Subsidiaries, and may capitalize or forgive any Indebtedness owed to them by a Wholly-Owned Foreign Subsidiary and outstanding under clause (f) of this Section 9.05, provided that the -------- aggregate amount of such contributions, capitalizations and forgiveness on and after the Initial Borrowing Date made to Wholly-Owned Foreign Subsidiaries which that are not Subsidiary Guarantors not to exceed $10,000,000 in the aggregateNon-Credit Parties, net of any repayments when added to the Borroweraggregate outstanding principal amount of Intercompany Loans made to Wholly-Owned Foreign Subsidiaries that are Non- Credit Parties under such clause (f) (determined without regard to any write- downs or write-offs thereof) shall not exceed an amount equal to $25,000,000; and
(nq) in addition to investments Investments permitted by clauses (a) through (mp) of this Section 9.05, the Borrower RPP USA and any of its Subsidiaries may make additional loans, advances and investments other Investments to or in a Person not an Affiliate in an aggregate amount for all loans, advances and investments other Investments made pursuant to this clause (nq) (determined without regard to any write-downs or write-offs thereof), net of cash repayments of principal in the case of loans loans, sale proceeds in the case of Investments in the form of debt instruments and cash equity returns (whether as a dividend distribution, dividend, redemption or redemptionsale) in the case of equity investments, not to exceed $100,00040,000,000 at any time outstanding.
Appears in 1 contract
Samples: Credit Agreement (RPP Capital Corp)
